Fiji 2013 Constitution - Page 13 of 14

Table of Contents

CHAPTER 12. COMMENCEMENT, INTERPRETATION, REPEALS AND TRANSITIONAL

Part A. SHORT TITLE AND COMMENCEMENT

162. Short title and commencement

This Constitution may be cited as the Constitution of the Republic of Fiji.
This Constitution shall come into force on 7 September 2013.

Part B. INTERPRETATION

163. Interpretation

In this Constitution, unless the contrary intention appears-
- “Act” means an Act of Parliament, a Decree or a Promulgation;
  “adult” means an individual who is 18 years of age or over;
  “Bill of Rights” means the rights and freedoms set out in Chapter 2;
  “child” means an individual who has not reached the age of 18 years;
  
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  “commission” means a commission established by, or continued in existence under, this Constitution;
  
  “Constitution of 1990” means the Constitution set out in the Constitution of the Sovereign Democratic Republic of Fiji (Promulgation) Decree 1990;
  
  “corrupt practices” includes-
  
  any attempt to improperly influence a public officer;
  
  to influence peddling, bribery, or extortion;
  
  misuse of inside information for personal gain;
  
  requesting or accepting any benefit to which a person is not lawfully entitled;
  
  withholding any service, benefit, decision or judgment, or threatening a person with the exercise of a lawful power against that person, or implying any such practice, in order to extort a personal benefit or to improperly obtain the person’s consent to any action or omission;
  
  unlawfully taking or demanding any private property;
  
  misuse or misapplication of public property for personal purposes, or theft of public property; and
  
  converting or selling public assets for personal gain;
  
  “criminal proceedings” means proceedings before any court, other than a military court, in which a person is prosecuted for allegedly committing an offence, including an appeal, a case presented on the basis of agreed facts, or a question of law reserved;
  
  “department” means a department of the public service, under a ministry;
  
  “disability” includes any physical, sensory, mental, psychological or other condition, or illness that-
  
  has, or is perceived by significant sectors of the community to have, a significant adverse effect on an individual’s ability to participate fully and effectively in society on an equal basis with others; or
  
  forms the basis of unfair discrimination;
  
  “disciplinary law” means a written law regulating the discipline of any disciplined force;
  
  “disciplined force” means-
  
  the Republic of Fiji Military Forces;
  
  the Fiji Police Force; or
  
  the Fiji Corrections Service;
  
  “electoral offences” includes an offence under a law governing elections and includes any offence under any law governing registration of voters and registration of political parties;
  
  “Fiji” or “Republic of Fiji” means the territories which immediately before 10 October 1970 constituted the Colony of Fiji and includes any other territory declared by Parliament to form part of Fiji;
  
  “Gazette” means the Government of the Republic of Fiji Gazette published by order or under the authority of the Government, or a supplement to the Gazette;
  
  “Government” means the Government of the State;
  
  “human trafficking” includes trafficking of persons as defined or prescribed by a written law;
  
  “Judge” means a Judge of the High Court (including the Chief Justice), a Justice of Appeal (including the President of the Court of Appeal) or a Judge of the Supreme Court;
  
  “judicial officer” includes a Judge of the High Court (including the Chief Justice), a Justice of Appeal (including the President of the Court of Appeal), a Judge of the Supreme Court, Magistrate, Masters of the High Court, the Chief Registrar and other judicial officers appointed by the Judicial Services Commission;
  
  “law” includes all written law;
  
  “minerals” includes all minerals extracted from land or seabed and includes natural gases;
  
  “oath” includes affirmation;
  
  “oath or affirmation of allegiance and office” means the oath or affirmation of allegiance and office as set out in the Schedule;
  
  “person” means a natural or legal person, including a company or association or body of persons whether corporate or unincorporated;
  
  “political party” means an organised group or association of persons striving for participation in the political life or Government of the Republic of Fiji that has been registered under a written law regulating the organisation of political parties;
  
  “prescribed” means prescribed in, by or under a written law;
  
  “President” means the President of the Republic of Fiji appointed under Chapter 4 and includes any person appointed or holding office under Part D of this Chapter;
  
  “property” includes any vested or contingent right to, or interest in or arising from-
  
  land, or permanent fixtures on, or improvements to, land;
  
  goods or personal property;
  
  intellectual property; or
  
  money or negotiable instruments;
  
  “public office” means-
  
  an office created by, or continued in existence under, this Constitution;
  
  an office in respect of which this Constitution makes provision;
  
  an office of a member of a commission;
  
  an office in a State service;
  
  an office of Judge;
  
  an office of Magistrate or an office in a court created by written law;
  
  an office in, or as a member of, a statutory authority; or
  
  an office established by written law;
  
  “public officer” means the holder of a public office;
  
  “public service” means the service of the State in a civil capacity but does not include-
  
  service in the judicial branch;
  
  service in the office of a member of a commission; or
  
  service in an office created by, or continued in existence under, this Constitution;
  
  “session”, in relation to Parliament, means a sitting of Parliament starting when it first meets after a prorogation of Parliament or a dissolution of Parliament and ending when Parliament is next prorogued or Parliament is next dissolved;
  
  “sentence of imprisonment” does not include a suspended sentence or a sentence of imprisonment with the option of a fine;
  
  “sitting”, in relation to Parliament, means a period during which Parliament is sitting continuously without adjournment, and includes any period during which Parliament is in committee;
  
  “Speaker” means the Speaker of Parliament;
  
  “State” means the Republic of Fiji;
  
  “state of emergency” means a state of emergency proclaimed under Chapter 9;
  
  “State service” means the public service and the disciplined force;
  
  “subordinate court” means any court of law established for the State other than the High Court, Court of Appeal, Supreme Court or a court established by a disciplinary law;
  
  “subordinate law” means any instrument made in exercise of a power to make the instrument conferred by an Act, and includes regulations, rules, orders, by-laws or declarations;
  
  “this Constitution” means the Constitution of the Republic of Fiji; and
  
  “written law” means an Act, Decree, Promulgation and subordinate law made under those Acts, Decrees or Promulgations.
A reference in this Constitution to a power to make appointments to a public office includes a reference to-
1. a power to make appointments on the promotion or transfer to the office; and
2. a power to appoint a person to act in the office while it is vacant or its holder is unable to perform the functions of the office.
In this Constitution, unless the contrary intention appears, a reference to the holder of an office by the term designating his or her office includes a reference to any person for the time being acting in the office.
A person who has been appointed to an office established by this Constitution may resign from the office by notice in writing signed by him or her addressed to the person or authority by whom he or she was appointed, and the resignation takes effect-
1. at the time or on the date specified in the notice; or
2. when the notice is received by the person or authority to whom it is addressed,
whichever is the later.
A reference in this Constitution to a power to remove a person from a public office includes a reference to-
1. a power to require the person to retire from office;
2. a power to terminate the contract on which the person is employed; or
3. a power not to renew the contract on which the person is employed.
A reference in this Constitution to amending any law (including this Constitution) is a reference to-
1. repealing it with or without replacing it by another law;
2. modifying, varying, revising or altering it by amendment or otherwise;
3. suspending its operation; or
4. making other provision that is inconsistent with it.
A person, authority or body upon whom the functions are conferred by this Constitution has power to do everything necessary or convenient to be done for, or in connection with, the performance of those functions.
A reference in this Constitution to the Minister in relation to the doing of anything, the participation in any consultation or the receipt of any report is a reference to the Minister who, for the time being, has been assigned responsibility for the part of the business of the Government relating to the subject matter of the activity concerned.
Unless the contrary intention appears, a reference in this Constitution to a Minister includes a reference to the Minister for the time being acting for and on behalf of the first mentioned Minister.
A provision of this Constitution to the effect that a person or authority is not subject to the direction or control of any other person or authority in the performance of functions or the exercise of powers is not to be construed as precluding a court of law from exercising jurisdiction in relation to a question whether the first mentioned person or authority has performed the functions or exercised the powers in accordance with this Constitution or whether that person or authority should or should not perform the functions or exercise the powers.
A power conferred by this Constitution to make, grant or issue any instrument (including a proclamation, order, regulation or rule), or to give any direction, includes the power, exercisable in the like manner, to repeal, rescind, revoke, amend or vary the instrument or direction.
For the avoidance of doubt, use of the word “must” in this Constitution imports obligation to the same extent as if the word “shall” were used.
A reference in this Constitution to an office named in this Constitution is to be read with any formal alteration necessary to make it applicable in the circumstances.
In this Constitution, unless the context otherwise requires-
1. if a word or expression is defined in this Constitution, any grammatical variation or cognate expression of the word or expression has a corresponding meaning, read with the changes required by the context; and
2. the word “includes” means “includes, but is not limited to”.
In calculating time between 2 events for any purpose under this Constitution, if the time is expressed-
1. as days, the day on which the first event occurs is to be excluded, and the day by which the last event may occur is to be included;
2. as months, the time period ends at the beginning of the day in the relevant month-
  1. that has the same number as the date on which the period began, if that month has a corresponding date; or
  2. that is the last day of that month, in any other case; or
3. as years, the period of time ends at the beginning of the date of the relevant year that corresponds to the date on which the period began.
If a period of time prescribed by this Constitution for any purpose is 6 days or less, Sundays and public holidays are not to be counted when calculating the time.
If, in any particular circumstance, the period of time prescribed by this Constitution ends on a Sunday or a public holiday, the period extends to the first subsequent day that is not a Sunday or public holiday.
If a particular time is not prescribed by this Constitution for performing a required act, the act must be done without unreasonable delay, and as often as the occasion requires.
If any person has authority under this Constitution to extend a period of time prescribed by this Constitution, the authority may be exercised either before or after the end of the period, unless a contrary intention is expressly mentioned in the provision conferring the authority.
Except to the extent that this Constitution provides otherwise, if a person has vacated an office established under this Constitution, the person may, if qualified, again be appointed, elected or otherwise selected to hold the office in accordance with this Constitution.
The Schedule is a part of this Constitution, and every use of the expression “this Constitution” includes the Schedule.
Any person required under any law to take an oath or affirmation of allegiance and office must take the appropriate oath or affirmation set out in the Schedule.

Part C. REPEALS

164. Repeals

Subject to Part D of this Chapter and other provisions of this Constitution, the following written laws are repealed-

Executive Authority of Fiji Decree 2009;
Revenue and Expenditure Decree 2009;
State Services Decree 2009;
Office of the Vice-President and Succession Decree 2009; and
Administration of Justice Decree 2009.

Part D. TRANSITIONAL

165. Office of the President

Notwithstanding the repeal of the Executive Authority of Fiji Decree 2009, the President appointed under the Executive Authority of Fiji Decree 2009 shall continue to hold office for the term of his or her appointment made under the Executive Authority of Fiji Decree 2009, and any re-appointment to the office of the President must be done in accordance with the provisions of this Constitution.
The President appointed under the Executive Authority of Fiji Decree 2009 shall continue to exercise executive authority of Fiji and exercise all the powers (including making laws by Decree on the advice of Cabinet) vested in him or her under the Executive Authority of Fiji Decree 2009, until the first sitting of the first Parliament under this Constitution.
If any vacancy arises in the office of the President before the first sitting of the first Parliament under this Constitution, then another person shall be appointed to the office of the President in accordance with the Executive Authority of Fiji Decree 2009.
Notwithstanding the repeal of the Office of the Vice-President and Succession Decree 2009, until the first sitting of the first Parliament under this Constitution, if the office of the President is vacant or if the President is absent from duty or from Fiji or is, for any reason, unable to perform the functions of the office of the President, then the functions of the office of the President shall be performed by the Chief Justice.

166. Prime Minister and Ministers

Notwithstanding the repeal of the Executive Authority of Fiji Decree 2009, the Prime Minister and other Ministers appointed under the Executive Authority of Fiji Decree 2009 shall continue in office until a Prime Minister assumes office under section 93 of this Constitution.
The Prime Minister and other Ministers shall continue to exercise all the authority and powers vested in the Prime Minister and other Ministers under the Executive Authority of Fiji Decree 2009 until a Prime Minister assumes office under section 93 of this Constitution.
Notwithstanding its repeal and notwithstanding anything contained in this Constitution, the Executive Authority of Fiji Decree 2009 shall continue to be in force until the first sitting of the first Parliament under this Constitution.
Notwithstanding the repeal of the laws mentioned in Part C of this Chapter and notwithstanding anything contained in this Constitution, until the first sitting of the first Parliament under this Constitution, subordinate laws shall be made in accordance with laws, rules and procedures applicable prior to the commencement of this Constitution.

167. Public or Constitutional officers

Any person who immediately before the date of commencement of this Constitution holds or is acting in a public office shall, from the date of the commencement of this Constitution hold or act in that office or the corresponding public office established by this Constitution as if he or she had been appointed to do so in accordance with the provisions of this Constitution and shall be deemed to have taken any oath or affirmation required upon such appointment by any existing law.
The provision of this section shall be without prejudice to any power conferred by or under this Constitution to make provision for the abolition of offices or for the removal from office of persons holding or acting in any office.
Notwithstanding anything contained in this Constitution, until the first sitting of the first Parliament elected under this Constitution, any function, power or duty that is conferred under this Constitution on the Constitutional Offices Commission shall be performed by the Prime Minister.
For the avoidance of doubt, the members of the Constitutional Offices Commission referred to in section 132(2)(d) and (e) shall only be appointed after the first sitting of the first Parliament elected under this Constitution, and the Constitution Offices Commission shall not hold any meeting until after the first sitting of the first Parliament elected under this Constitution.
Notwithstanding anything contained in this Constitution, sections 79(8), 108(2), 116(12), 117(13), 121(15), 127(8), 129(8), 130(8), 131(6) and 152(7) shall only take effect from 1 January 2014.

168. Finance

Notwithstanding the repeal of the Revenue and Expenditure Decree 2009 and the provisions of Chapter 7 of this Constitution, the Revenue and Expenditure Decree 2009 shall continue to be in force until the first sitting of the first Parliament under this Constitution.

169. Functions of Parliament and Speaker

Notwithstanding the repeal of the laws mentioned in Part C of this Chapter, any function that has to be performed by the Speaker in this Constitution shall, until the first sitting of the first Parliament under this Constitution, be performed by the Prime Minister.
Notwithstanding the repeal of the laws mentioned in Part C of this Chapter, any function that has to be performed by Parliament in this Constitution shall, until the first sitting of the first Parliament under this Constitution, be performed by Cabinet.
Notwithstanding anything contained in this Constitution, until the first sitting of the first Parliament elected under this Constitution, any function, power or duty that is conferred under this Constitution on the Leader of the Opposition shall be performed by the Prime Minister.

170. Elections

Notwithstanding anything contained in Chapter 4 of this Constitution, the first general election for members of Parliament under this Constitution shall be held on a date to be determined by the President, on the advice of the Prime Minister, provided however that the first general election must be held no later than 30 September 2014.
For the first general election of members of Parliament under this Constitution, the date on which such general election shall be held shall be publicly announced by the President at least 60 days before the date of the general election.
The writ for the first general election of members of Parliament under this Constitution shall be issued by the President on the advice of the Prime Minister, at least 44 days before the date of the general election.
For the first general election of members of Parliament under this Constitution, the last day for the receipt of a nomination of a candidate for election to Parliament shall be 30 days before the date of the general election.
Until such time the Electoral Commission or a Supervisor of Elections is appointed under this Constitution, the functions of the Electoral Commission or the Supervisor of Elections shall be performed by the Permanent Secretary responsible for elections.

171. Succession of institutions

An office or institution established under this Constitution shall be the legal successor of the corresponding office or institution existing immediately before the commencement of this Constitution.
Upon its appointment under this Constitution, the Supervisor of Elections shall be the legal successor to the office of the Registrar of Voters under the Electoral (Registration of Voters) Decree 2012 and to the office of the Registrar under the Political Parties (Registration, Conduct, Funding and Disclosures) Decree 2013.

172. Preservation of rights and obligations

Except to the extent that this Constitution expressly provides otherwise, all rights and obligations, however arising, of the State and subsisting immediately before the commencement of this Constitution shall continue as rights and obligations of the State under this Constitution.
All permits, licences, rights or similar undertakings of the State issued to any person, and in force immediately before the commencement of this Constitution shall continue in the same terms from that date.
All delegations that had been given before the commencement of this Constitution by a person referred to any law repealed under Part C of this Chapter and which were in force immediately before the commencement of this Constitution, shall continue in force after the commencement of this Constitution, as if given by a corresponding commission or person referred to in this Constitution.
All proceedings before a commission or a person referred to in any law repealed under Part C of this Chapter that had commenced but had not been determined on the date of the commencement of this Constitution shall continue after the commencement of this Constitution as if they had been commenced before the corresponding commission or person referred to in this Constitution.
Any complaint lodged with the Human Rights Commission established under the Human Rights Commission Decree 2009 but which had not been determined by the date of the commencement of this Constitution shall continue to be dealt with by the Human Rights and Anti-Discrimination Commission established under section 45 of this Constitution, provided however that any complaint made to the Human Rights and Anti-Discrimination Commission after 21 August 2013 must be limited to matters, events or incidents which occurred or occur after 21 August 2013, and the Human Rights and Anti-Discrimination Commission must not in any way deal with any complaint made to it after 21 August 2013 if the complaint relates to matters, events or incidents occurring before 21 August 2013.

173. Preservation of laws

Subject to subsection (2), all written laws in force immediately before the date of commencement of this Constitution (other than the laws referred to in Part C of this Chapter) shall continue in force as if they had been made under or pursuant to this Constitution, and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution.
Notwithstanding anything contained in this Constitution, any Promulgation, Decree or Declaration (other than the laws referred to in Part C of this Chapter) and any subordinate laws made under any such Promulgation, Decree or Declaration-
1. made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution; and
2. which are in force and have not been repealed or replaced by another Promulgation, Decree or Declaration or by any subordinate laws made under any such Promulgation, Decree or Declaration (as the case may be),
shall continue to be in force in their entirety.
Notwithstanding anything contained in this Constitution, any Promulgation, Decree or Declaration (other than the laws referred to in Part C of this Chapter) and any subordinate laws made under any such Promulgation, Decree or Declaration-
1. made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution; and
2. which are in force and have not been repealed or replaced by another Promulgation, Decree or Declaration or by any subordinate laws made under any such Promulgation, Decree or Declaration (as the case may be),
may be amended by Parliament after the commencement of this Constitution, provided however that no such amendment shall-
1. have any retrospective effect;
2. in any way nullify any decision made under these laws; or
3. grant any compensation, damages, relief, remedy or reparation to any person affected by these laws.
Notwithstanding anything contained in this Constitution, no court or tribunal (including any court or tribunal established or continued in existence by the Constitution) shall have the jurisdiction to accept, hear, determine, or in any other way entertain, or to grant any order, relief or remedy, in any proceeding of any nature whatsoever which seeks or purports to challenge or question-
1. the validity or legality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;
2. the constitutionality of any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution;
3. any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, for being inconsistent with any provision of this Constitution, including any provision of Chapter 2 of this Constitution; or
4. any decision made or authorised, or any action taken, or any decision which may be made or authorised, or any action which may be taken, under any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution, except as may be provided in or authorised by any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.
Notwithstanding anything contained in this Constitution, despite the repeal of the Administration of Justice Decree 2009, subsections (3), (4), (5), (6) and (7) of section 5 of the Administration of Justice Decree 2009 shall continue to apply to any Promulgation, Decree or Declaration, and any subordinate laws made under any such Promulgation, Decree or Declaration (including any provision of any such laws), made or as may be made between 5 December 2006 until the first sitting of the first Parliament under this Constitution.
All written laws that had been made but had not come into force on the date of the commencement of this Constitution may be brought into force in accordance with their terms and shall apply as if enacted or made under or pursuant to this Constitution.

174. Judicial proceedings

The courts established by the Administration of Justice Decree 2009 shall continue in existence.
All proceedings in the courts established under the Administration of Justice Decree 2009 that had commenced but had not been determined on the date of the commencement of this Constitution shall continue as if the provisions of this Constitution were in force at their commencement.
Notwithstanding anything contained in this Constitution, sections 23, 23A, 23B, 23C, and 23D of the Administration of Justice Decree 2009 shall continue in force and shall not be amended, revised, altered or repealed, and the courts established by, or continued in existence under, this Constitution shall not have jurisdiction to-
1. accept, hear or determine any matter for which the jurisdiction of the courts is excluded under the Administration of Justice Decree 2009 or under any Promulgation, Decree, Declaration or under any other written law; or
2. accept, hear or determine any proceeding which had been terminated under the Administration of Justice Decree 2009 or under any Promulgation, Decree, Declaration or under any other written law.