Fiji

CEDAW Legislative Compliance Review LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

164 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS 3 Legislative Compliance of Fiji

3.1 Overview 3.2 Synopsis of Findings

This Chapter examines Fiji’s legislative compliance 1. Article 1 (which defines discrimination) in with CEDAW. The assessment of Fiji’s legislation is conjunction with Article 2 requires States based on the indicators identified in Chapter One and Parties to guarantee a range of fundamental should be read in conjunction with the commentary rights and freedoms in their constitutions on each indicator included in that Chapter. Fiji ratified including substantive equality and freedom CEDAW on 28 August 1995 obliging it to work from discrimination on grounds of sex, marital towards the modification of its constitution and status, sexual orientation, HIV status and legislation to accord with the articles of CEDAW. disability. The Constitution of Fiji guarantees However, it is recognised that legislative compliance the rights and freedoms of citizens in most of will be achieved through gradual and incremental the areas required by CEDAW. However, change. In sum, Fiji has achieved full compliance with whilst the Constitution guarantees men and 49 of 113 indicators, partial compliance with 26 women equality before the law it does not indicators and is non-compliant with the remaining guarantee equal benefits or outcomes as 38 indicators. It should be noted however, that Fiji is required by CEDAW. The Constitution of Fiji, in a time of significant legislative change and reform. in compliance with CEDAW, contains an anti- Therefore, whilst the assessment of Fiji’s compliance discrimination clause that encompasses is based on the law in effect as at 30 December 2006, remedies for both direct and indirect there are nevertheless several important areas discrimination on the grounds of gender, relevant to CEDAW that are either already the subject disability and sexual orientation amongst of draft legislation before the Parliament or the others. subject of investigation.

2. Articles 2 and 3 together mandate the The next section [3.2] provides a brief synopsis of the establishment by legislation of national findings of the review of Fiji’s legislative compliance bodies and machinery to monitor the with CEDAW. It is divided into sections corresponding implementation of law and policy to foster with the main areas of interaction between the law the advancement of women. The Fijian and women’s lives that have historically been the Constitution establishes a Human Rights subject of discrimination. Following the synopsis is Commission which is empowered to facilitate a series of tables each correlating with an article of the implementation of affirmative action CEDAW, the relevant indicators, the level of programmes in line with the constitutional compliance achieved by Fiji (i.e. yes, no or partial guarantee. Although not specifically targeted compliance), the relevant legislation and finally at the advancement of women, the where required, a brief commentary explaining how Commission has the capacity to accelerate the legislation does or does not meet the indicator. women’s advancement in the areas It should be noted that the Fiji legislative review was nominated by the Constitution. Fiji also has a conducted using all materials available at the time, Ministry for Women, Culture and Social and that although every effort was made to obtain Welfare which plays a role in the the most recent and up-to-date legal material, it is advancement of women. However, it is not possible that there will be errors or omissions. established by legislation which makes it 165 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

vulnerable to removal in times of economic 4. is a gendered crime since it is primarily and political upheaval. perpetrated against women and girls by men in the context of unequal power relations. 3. Article 2 condemns discrimination against Criminalising all parties to an incestuous women in all its forms and obligates States sexual encounter is contrary to CEDAW and Parties to eliminate discrimination against may dissuade a victim of an incestuous sexual women without delay. General assault from reporting it for fear of being Recommendation 19 issued by the CEDAW charged with an offence. In Fiji, in non- Committee makes explicit that the definition compliance with CEDAW, incest is an offence of discrimination includes gender violence and for a girl aged 16 years or above attracting a recommends that ‘sanctions, penalties and penalty of 10 years. compensation’ be introduced in relation to gender based violence. Sexual assault is a form 5. Three discriminatory common law rules have of gender violence as it is overwhelmingly historically made it difficult for prosecutions perpetrated against girls and women, and against sexual assault offenders to succeed and therefore must be prevented and remedied, as are contrary to CEDAW. The admission of the far as possible, through legislative means. Fiji prior sexual history of a victim in order to has legislated against sexual assault. Sexual establish that she consented to the sexual act assault laws in Fiji, however, provide in question is a common law rule which inadequate protection for the range of sexual perpetuates the myth that a victim’s previous violations perpetrated against girls and sexual relationship with either the accused or women. All sexual offences except indecent others makes it more likely she consented. assault require penile penetration which Corroboration (independent evidence such as excludes many of the ways in which women that of a witness that connects the accused are sexually violated. Indecent assault is the person with the crime) is a common law rule only offence for sexual violations that does not that requires a judge to advise the jury that it include penile penetration and imposes a is dangerous to convict the accused on sentence of only 5 years. All other sexual uncorroborated evidence. Proof of resistance offences require penile penetration. The is a common law rule which requires victims inclusion of different categories of ‘defilement’ to establish that they physically resisted the for girls aged under 13 and girls aged 13 to 15 perpetrator otherwise consent may be which imposes different sentences (life inferred. It is discriminatory because physical imprisonment for the former and 10 years for resistance may be an unrealistic expectation the latter) appear unjustified because sexual of a victim against a strong or armed assault causes devastating harm to women perpetrator, and does not take into account and girls of all ages. The Sexual Offences how fear and power imbalances may Report 1999 prepared by the Fiji Law Reform immobilise the victim. Compliance with Commission considers and recommends CEDAW requires that legislation prohibits the widespread changes to sexual assault law. use of all three rules. In non compliance with Indeed, the draft sexual offences legislation CEDAW, Fiji, however, has not legislated prepared by the Fiji Women’s Rights against the use of prior sexual conduct the Movement, if adopted, will bring Fiji necessity for corroboration in sexual offence significantly in line with the indicators prosecutions or the requirement for proof of developed for Article 2 of CEDAW. resistance by the victim. 166 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

6. The Fiji Penal Code provides a defence in sexual indicators developed for Article 2. assault prosecutions for the accused to claim that he did not know the girl was not of legal 9. Infanticide refers to the killing of a child by its age in all offences except the defilement of a mother (in contrast to abortion which refers girl under 13. This places the onus on the minor to the destruction of a foetus). Full compliance to establish her age rather than the perpetrator with CEDAW requires that an offence of to ascertain age, and is non-compliant with infanticide replaces a charge of murder or CEDAW as a result. Consent is not available as manslaughter and has a reduced sentence a defence for sexual assaults on girls under 16, recognising the societal pressures that lead however, full compliance with CEDAW women to kill their children. Women who do requires that consent is unavailable for girls so should not be held accountable to charges of 18 and under, the age CEDAW stipulates as the murder or manslaughter. An offence of age of adulthood. infanticide is contained in the Fiji criminal law legislation but it reduces a charge of murder to 7. Minimum sentences and mandatory manslaughter, rather than replacing both prosecution ensure that sexual violence against murder and manslaughter with a separate women is treated seriously. Fiji, however, does offence and a corresponding less severe penalty. not have mandatory prosecution or minimum Further, the definition of infanticide is sentences for sexual assault offences. In restricted solely to the effects of lactation and addition, the legislation does not prohibit the birthing. Such a view of the causes of customary practices of forgiveness from infanticide has been largely discredited by reducing sentences. Bail, which to comply with research, which instead has linked such CEDAW should not be granted if there is any killings to post-natal depression caused also risk to a sexual assault victim, must be granted in part, by the social pressures of raising by the court unless previously breached. children.

8. Although General Recommendation 19 (which 10. Article 4 requires that special measures concerns violence against women) identifies provisions be introduced into national as a form of discrimination constitutions and legislation. The presence of a that inhibits women’s ability to enjoy rights special measures provision in the Fiji and freedoms on a basis of equality with men, Constitution is a positive step towards Fiji’s Penal Code does not contain offences for compliance with CEDAW. However, it is limited domestic violence. Instead, women have to rely to education and training, land and housing, on the general assault provisions which are participation in commerce and in all levels of insufficient to encompass the breadth of the public service. situations in which women experience violence in their domestic lives. However, it should be 11. Article 5 requires States Parties to abolish or noted that a series of consultative workshops modify customary practices that discriminate culminating in three reports on domestic against women. In Fiji, the Constitution gives violence were conducted by the Fiji Law constitutional status to custom in relation to Reform Commission. The final report, land. However, other customary practices do published in 2005 contains a draft Domestic not have constitutional status and, coupled Violence Bill which, if adopted, will bring Fiji with strong anti-discrimination provisions significantly in line with the domestic violence gives women partial protection against 167 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

customary law that discriminates against 14. Article 8 requires States Parties to ensure that them on the basis of sex/gender. women have equal opportunities to represent their governments at the international level. 12. Article 6 requires States Parties to suppress all Although there is no legal barrier preventing forms of trafficking in women and the women from representing their governments exploitation of women in prostitution and in Fiji, the low numbers of women who do so, Articles 2 and 11 require the elimination of necessitates for full compliance with CEDAW, discrimination against women in the introduction of quotas to raise employment. Cumulatively, these articles participation. mandate both the protection of sex workers from exploitation whilst also affording them 15. Article 9 requires States Parties to eliminate discrimination in the areas of nationality, the rights and protections of other workers. citizenship and domicile. Fiji provides women Criminalising sex work is therefore not with equal rights in all areas of citizenship and desirable, however it is imperative that there nationality and is in full compliance with are laws prohibiting the procuring and CEDAW in this area. Women have equal rights trafficking of women for sex work. Soliciting is with men when they marry a non-national, a criminal offence in Fiji (for both men and they can determine their children’s citizenship women) denying sex workers both the right to and nationality on an equal basis with the lawful employment and the right to the same fathers of their children and they have equal protections and employment conditions as rights to acquire and obtain citizenship. other workers (such as regulated standards of occupational safety, standard rates of pay, 16. Article 10 obligates States Parties to ensure parental leave, sick leave). Although there are women have equal rights and opportunities in a range of offences for procuring girls or women education. The imposition of compulsory without their consent which provides some education is one means of ensuring that the protection against exploitation, the sentences educational needs of boys are not favoured over for these offences are uniformly only 2 years girls. Compulsory education has been and insufficient for full compliance with gradually introduced in Fiji for females and CEDAW. males aged from 6-15, evidencing greater compliance with CEDAW. The Constitution and 13. Article 7 obligates States Parties to take all human rights legislation has also provided the appropriate measures to eliminate opportunity for affirmative action to advance discrimination in women’s political and public women in the area of education, in compliance lives. Universal suffrage and equal legal rights with CEDAW. However, discrimination is still to political representation for women has been prevalent in schools where girls and women achieved in Fiji. However, Fiji which currently face expulsion because of their pregnant status. has only 8 female members of parliament out The absence of a prohibition on the expulsion of a total of 71 seats in the lower house and 5 of pregnant girls from school perpetuates such out of 32 in the upper house, has not discrimination. introduced special measures such as quotas to ensure higher numbers of women enter 17. Article 11 obligates States Parties to eliminate parliament and participate in the governance discrimination in employment. Women in Fiji of their countries. have many of the same rights in employment 168 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

as men. However, despite the availability of a before Parliament, which if enacted will satisfy mechanism for affirmative action in many of the indicators developed for Article employment entrusted to the Human Rights 11. Commission, there are a number of aspects of employment law in Fiji which discriminate 19. Article 12 requires States Parties to ensure that against women and fail to comply with women have access to health care services CEDAW. The minimum standard for maternity including those related to family planning. leave is only 84 days paid at a rate of $5 per Abortion is criminalised in Fiji with a penalty day. There is no provision for nursing after of 7 years and life imprisonment if it is childbirth during work hours, which denies performed at 28 weeks or more of pregnancy. women equal opportunity to continue their Although abortion can be lawfully carried out work service uninterrupted especially in the to save a mother’s life, women do not have absence of any state or employer funded access to safe abortion facilities as of right. The childcare. Finally, protection from dismissal failure to decriminalise abortion and to provide ends upon the expiry of the approved safe accessible facilities for women who require maternity leave period, leaving women in abortions endangers their health and that of precarious positions in relation to job security any child born subsequent to a failed abortion if they require (or choose) to take further leave. since research indicates that when a mother dies (including as a result of unsafe abortion) 18. The CEDAW Committee in General the chance of survival of all surviving children Recommendations 12 and 19 has identified under 5 is significantly reduced. sexual harassment in the workplace as a form of discrimination against women. General 20. Article 13(b) of CEDAW provides that women Recommendation 19 defines sexual should be afforded equal rights to bank loans, harassment as unwelcome sexually mortgages and other forms of financial credit determined behaviour such as physical free from discrimination. Although there is no and advances, sexually coloured remarks, legislative barrier to women in Fiji from showing pornography and sexual demands accessing such services, discrimination whether by words or actions. Such actions can continues to hinder women from obtaining be humiliating for the recipient and are credit and loans to purchase property or discriminatory when they create a hostile businesses, thus interfering with their work environment. Although the Human Rights autonomy and ability to earn a livelihood. Commission Act 1999 makes harassment a Article 13(c) of CEDAW requires that women ground of ‘unfair discrimination’ in have an equal right to participate in employment this has not as yet been matched recreational activities, sports and all aspects in the employment legislation. There is no of cultural life and there are no legislative specific protection from sexual harassment in barriers in Fiji preventing women from doing either the public or the private sector. Although so. an action could be pursued in the criminal law for ‘insulting the modesty’ of girls and women 21. Article 14 obligates States Parties to put in in limited circumstances, this is unlikely to be place measures to ensure the equality of rural pursued by many (if any) women in the women. Rural women often play a significant workplace context. It should be noted however, role in the economic survival of their families that an Industrial Relations Bill is currently and communities although they are frequently 169 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

disadvantaged in areas such as land compliance with CEDAW Fiji requires the ownership, health, education and housing to registration of all and is a name a few. The achievement of substantive criminal offence. equality for rural women and compliance with CEDAW requires temporary special measures 25. Fault based , which require proof of a provisions to be incorporated into both the matrimonial offence such as desertion or Constitution and legislation. Fiji has habitual rape, place women in the difficult incorporated affirmative action provisions into position of having to provide evidence of legislation in relation to land and housing situations that may be humiliating, which may assist rural women. embarrassing, or that may interfere with their dignity and privacy. Women also face 22. Article 15 requires States Parties to guarantee discrimination in proving fault, particularly women equality before the law and equal cruelty and adultery if they choose not to be rights to participate in all aspects of civil life. witnesses or they do not wish to attend court Fiji expressly guarantees women equality proceedings. in Fiji is no longer based before the law and there are no legal barriers on fault based criteria and is therefore in full to women’s participation in court and tribunal compliance with CEDAW. processes, nor are women denied the right to conclude contracts and administer property. 26. The CEDAW Committee in General Recommendation 19(23) (which deals with 23. Article 16 obligates States Parties to remove violence against women, in relation to Articles discrimination in family and personal laws 16 and 5 of CEDAW) states that a lack of including , separation, divorce, economic independence or an inability to gain maintenance, , property division, custody of their children upon separation paternity and inheritance. The recent forces many women to stay in violent or introduction of the Act 2003 has difficult relationships. The Family Law Act 2003 culminated in Fiji’s substantial compliance contains provisions for maintenance for with many of the indicators in the area of children (including children born outside of family relationship breakdowns and the marriage) and spouses after separation and subsequent issues of maintenance and custody. divorce. Maintenance is based on the earning However, the Act only applies to married capacity of both parties, the needs of both persons and not de facto relationships, parties and any children, the assets of both and including same-sex relationships (despite a the commitments of either especially other guarantee of non-discrimination on the basis dependants, in compliance with CEDAW. The of sexual orientation in the Fiji Constitution). Act also provides for a restraining order in a wide variety of situations including home and 24. The CEDAW Committee in General work, although this is only available for Recommendation 21, has nominated 18 as the married women. minimum age of marriage for both males and females. Fiji however maintains the existence 27. In General Recommendation 21, which deals of an unequal of 16 for girls with equality in family relations, the CEDAW and 18 for males and, in the marriage of minors, Committee states that the division of marital privileges the consent of the father over the property should include recognition of non- mother, in non-compliance with CEDAW. In financial contributions during a marriage such 170 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

as raising children, caring for elderly relatives, equality in relation to the ownership, and discharging household duties. The Family administration, enjoyment and disposition of Law Act 2003 contains provisions for the property since custom in relation to land is division of marital property which takes given constitutional status thereby giving men account of both financial and non-financial control of many aspects of land and property. contributions in full compliance with CEDAW. 30. Article 16 requires that inheritance laws should 28. The best interests of the child as the paramount apply equally to males and females. Inheritance consideration is universally accepted as the laws are equal in the legislation, however, principle on which custody determinations custom in relation to land has constitutional should be based, according to Article 16(f) of status and may discriminate against women. CEDAW. In compliance with CEDAW, custody determinations in Fiji prioritise the best 31. A series of tables detailing Fiji’s compliance interests of the child as the paramount with CEDAW is provided in the following consideration. pages. Each table relates to an article of CEDAW 29. In General Recommendation 21, the CEDAW and contains the applicable indicator(s), the Committee states that the right to own, level of compliance achieved, the relevant manage, enjoy and dispose of property is central legislation and finally where required, a brief to a woman’s right to enjoy financial commentary explaining how Fiji’s legislation independence. Women in Fiji do not enjoy does or does not meet the indicator.

171 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS Fiji: Detailed Analysis of Indicators

ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

1.1 Does the Constitution Partial Constitution (Amendment) Act 1997, s 22- The rights protected guarantee fundamental human 40. All citizens are entitled to the following include many of those rights and freedoms to men fundamental rights. Life, liberty, freedom from required by CEDAW and and women equally including servitude and forced labour, freedom from these are afforded equally in the political, economic cruel or degrading treatment, freedom from to men and women. There social, cultural, civil or any unreasonable searches and seizure, protection is therefore partial other field? of arrested or detained persons, rights of compliance with this charged persons, access to courts or tribunals, indicator but notable freedom of expression, freedom of assembly, absences include: freedom of association, labour relations, • Substantive equality freedom of movement, freedom of religion and is not a guaranteed belief, right to secret ballot, right to privacy, right. right to equality before the law, right to • The right to the education, protection from compulsory highest standard of acquisition of property. physical and mental health attainable is not a guaranteed right. 1.2 Is there a constitutional No There is no express guarantee of substantive guarantee of substantive equality between men and equality between men and women? women. 1.3 Does the Constitution contain Yes Constitution (Amendment) Act 1997, Although the areas of an anti-discrimination clause • s 37(2)(a). A person must not be unfairly marriage, , divo- on the ground of sex/gender? discriminated against, directly or rce, burial, devolu-tion of indirectly, on the ground of his or her: property are key areas of actual or supposed personal charac- discrimination in women’s teristics or circumstances, including lives, Fiji does not gender. recognise the personal But note: laws of any ethnic group • s 37(7)(e). States that no law in relation to in either the Constitution adoption, marriage, divorce, burial, or other legislation. This devolution of property on death or like exception therefore has matters as the personal law of any person little impact. or the members of any group is subject to an anti-discrimination action. 1.4 Does the Constitution contain No an anti-discrimination clause on the ground of marital status? 1.5 Does the Constitution contain Yes Constitution (Amendment) Act 1997, 1997 s an anti-discrimination clause 37(2). on the ground of sexual orientation? 1.6 Does the Constitution contain Partial Constitution (Amendment) Act 1997, s 37(2). an anti-discrimination clause on the ground of HIV status?

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

1.7 Does the Constitution contain Yes Constitution (Amendment) Act 1997, s 37(2). an anti-discrimination clause on the ground of disability? 1.8 Does the breadth of the Yes Constitution (Amendment) Act 1997, s 37(2). This provision enables a anti-discrimination clause A person must not be unfairly discriminated person to contest encompass direct and against directly or indirectly. discrimination in a indirect discrimination? situation when a rule appears to apply to a group of people in the same way but in practice places on particular members of that group a burden not faced by the majority. This recog- nises that discrimination does not always manifest in obvious or direct ways but may be disguised within poli- cies or practices which appear to apply to all persons equally. 1.9 Does the anti-discrimination Yes Constitution (Amendment) Act 1997. clause bind public authorities • s 21. States that the Bill of Rights binds (a) and institutions? the legislative, judicial and executive branches of government at all levels - central, divisional, local and (b) all persons performing the functions of any public office. • s 38(3). Applies to a ‘law or an administrative action taken under a law’. 1.10 Does the anti-discrimination Partial Constitution (Amendment) Act 1997, s 38(4). Coverage is limited to clause bind any person, ‘Every person has the right to access to shops, access to designated organisation or enterprise? hotels, lodging-houses, public restaurants, places and does not places of public entertainment, public transport encompass all the places services, taxis and public places’. and persons in the community from whom and where discrimi- nation against women can occur. 1.11 Are sanctions imposed for Yes Constitution (Amendment) Act 1997, s 14. the breach of anti- The High Court ‘may make such orders and discrimination provisions? give such directions as it considers appropriate’. 1.12 Are there specific domestic No There is no specific domestic violence These provisions do not violence offences in the protection. Two offences in the Penal Code embrace the variety of criminal law legislation (Penal [Cap 17] 1945 could be used in limited situations that constitute Code)? circumstances. domestic violence and have low penalties. The • s 242. Common assault - 1 year provisions therefore fall imprisonment.

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY • s 245. Assault causing actual bodily harm well short of compliance - 5 years imprisonment. with this indicator. 1.13 Is stalking a criminal offence? Partial Penal Code [Cap 17] 1945. s 330. Anyone who This is insufficient to threatens injury with intent to cause alarm incorporate the variety of commits an offence of criminal intimidation. stalking behaviours ex- perienced by women. 1.14 Is a restraining order available Partial Family Law Act 2003, Restraining orders are in situations of sexual and • s 202(a). The court can grant an injunction available in a range of domestic violence regard- for the personal protection of a party to circumstances however, less of marital status? the marriage. they are only available to • s 202 (b). An injunction to prevent one married persons. party from entering marital home or home in which other party lives or from a specified area where home is. • s 202 (c). An injunction retraining a party from the place of work. • s 202(f). An injunction relating to the use or occupancy of the matrimonial home. 1.15 Is there mandatory prose- No Mandatory prosecution cution for domestic violence ensures that domestic offences? violence is treated seriously. 1.16 Does the criminal law Partial Penal Code [Cap 17] 1945. There are a range Although the rape and legislation contain a broad of sexual offences with varying penalties. defilement of a girl under range of sexual assault • s 149. Rape - life imprisonment. 13 is treated seriously, the offences graded on the basis • s 151. Attempted rape - 10 years lighter sentence for of seriousness to the victim? imprisonment. defilement of a girl aged • s 153. Abduction of girl under 18 with between 13 and 16 implies intent to have carnal knowledge – that a sexual assault is not misdemeanour. as serious if the girl is older. • s 154 indecent assault - 5 years This is discriminatory. The imprisonment. absence of more expansive • s 155. Defilement (consent no defence) categories of offences to of girl under 13 - life imprisonment. cover the range of • s 156. Defilement of girl 13 and under 16 violations experienced by (consent no defence) - 10 years women makes the regime imprisonment. inadequate. 1.17 Does the definition of rape No Penal Code [Cap 17] 1945, s 183. Not necessary Penetration is confined to and/or sexual assault offences to prove the actual emission of seed but carnal penile penetration and include penetration of non- knowledge complete upon proof of does not include the range penile objects to anus, vagina penetration. of ways that women can be and mouth? sexually violated. 1.18 Is there an offence of incest No Penal Code [Cap 17] 1945, s 179. Any female There is an offence of for girls and women? If there 16 or over who with consent permits her incest in the Code which is an offence of incest for girls grandfather, father, brother or son to have carnal means that women and and women then there is no knowledge commits an offence – 10 years girls over 15 can be compliance with this imprisonment. charged with an offence. indicator. Therefore there is no compliance with this

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY indicator. These offences are discriminatory because: • No girl under 18 should be charged with any sexual offence and consent should be irrelevant. • An offence of incest against women and girls fails to recog- nise the power imbalance between girls and women and male relatives. Incest is typically perpet- rated by men against girls and women in non-consensual and coercive circums- tances. 1.19 Have the terms indecency, No Penal Code [Cap 17] 1945. The terms carnal These terms impart an carnal knowledge, defilement knowledge, indecency, insulting modesty and understanding of women and insulting modesty been defilement are used throughout the sexual and girls as ‘damaged’ by removed from the criminal assault offences. the offences rather than law legislation? reflecting the invasion of personal integrity that sexual assault involves. 1.20 Is consent specifically defined Partial Penal Code [Cap 17] 1945, s 149. Does not Although a range of in the criminal law legislation constitute consent if obtained ‘by force or by coercive situations are outlining coercive circum- means of threats or intimidation of any kind, or defined, they do not stances? by fear of bodily harm, or by means of false encompass the full range representations as to the nature of the act, or in of circumstances in the case of a married woman, by personating which women do not her husband. give free consent. In particular threats to third parties should be included. The list should be non-exhaustive. 1.21 Is there a legislative pro- No The use of prior sexual hibition on the use of prior history to establish sexual conduct to establish consent is discriminatory consent? as it perpetuates a view that a previous relation- ship or history of promiscuity makes it ‘more likely’ that a woman consented to the act in question.

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.22 Is there a legislative No Corroboration is difficult prohibition on requirement for sexual assault victims for corroboration? to establish as there are rarely any witnesses. Co- rroboration is not required for other offences and it is discriminatory to view sexual assault victims as unreliable witnesses. 1.23 Is there a legislative No Sexual assault victims may prohibition on the require- not be able to physically ment for proof of resistance? resist an armed or threatening perpetrator. 1.24 Is there a defence of honest No Penal Code [Cap 17] 1945. To be compliant with this and reasonable belief that the • s 153. Abduct unmarried women under 18 indicator, there should be no defence available to the victim is of legal age? If there to have carnal knowledge - defence honest perpetrator of ‘honest and is no defence of honest and and reasonable belief 18 or above. reasonable belief that the reasonable belief then there • s 154. Indecent assault on girl under 16 - victim is of legal age’. The is full compliance with this defence honest and reasonable belief 16 defence is available for all indicator. or above. offences relating to girls • s 156. Defilement of girl between 13 and under 18 and therefore 16 - defence honest and reasonable belief there is no compliance 16 or above. with this indicator and CEDAW. 1.25 Is a defence of consent Partial Penal Code [Cap 17] 1945. Consent is not a Full compliance with the unavailable in relation to a defence for girl under 16. indicator requires that victim under 18? consent is not a defence in relation to any girl under 18. 1.26 Is there an exemption from Yes To be compliant with this prosecution for marital rape? indicator, men should not If yes, then there is no be exempted from being compliance with this prosecuted for marital rape. indicator. If the Penal Code contains a law which protects men from being charged with marital rape, then there is no compliance with this indicator. The Penal Code does not exempt husbands from prosecution for marital rape and Fiji is therefore in full compliance with this indicator and with CEDAW. 1.27 Is there mandatory pro- No secution for sexual offences?

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 1.28 Is bail unavailable for sexual Partial Bail Act 2002. Many sexual offences are offences if risk to victim? • s 3. Court should grant bail unless categorised as ‘serious’, previously breached. If under 18 bail must (i.e. attract a sentence of be granted unless serious offence (more over 5 years) and police than 5 years penalty). cannot grant bail. • s 8. A police officer must not grant bail if However, even if the the offence is serious (more than 5 years offence is serious, there penalty). is a presumption that the court should grant bail unless there has been a previous breach by the perpetrator. Therefore the rights of the perpetrator are prioritised rather than the safety of the victim. There is no special provision for sexual offences. 1.29 Are there minimum sent- No Penal Code [Cap 17] 1945. No minimum The failure to have ences for sexual offences? sentences for sexual offences. minimum sentences for sexual offences enables courts to issues sent- ences that do not reflect the severity of sexual offences. 1.30 Is there a provision in the No criminal legislation which states that customary practices of forgiveness shall not affect criminal prosecution or sentencing? 1.31 Is there legislative provision Yes Criminal Procedure Code [Cap 21] 1945, s for compensation for victims 160(b). Court can order compensation to be of sexual and domestic paid to victim. violence? 1.32 Does the criminal law Partial Penal Code [Cap 17] 1945, s 205. Where a A charge of infanticide legislation allow for woman by any wilful act or omission causes should be a replacement infanticide to replace a charge the death of her child under the age of twelve offence for both murder and of murder or manslaughter? months, when her mind was disturbed because manslaughter with a much she had not fully recovered from the effect of lighter sentence to giving birth to the child or by reason of the recognise the societal effect of lactation consequent upon the birth of pressures that might lead the child a charge of murder shall be replaced a mother to kill her child. by manslaughter. 1.33 Does the definition of No As above. Research suggests that infanticide include environ- women who kill their mental and social stresses? children do so in part because of the environ- mental and social stresses

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ARTICLE 1: DEFINITION OF DISCRIMINATION AGAINST WOMEN ARTICLE 2: OBLIGATION TO ELIMINATE DISCRIMINATION INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

of raising children. Basing infanticide solely on the perceived hormonal and biological weaknesses that women suffer during childbirth and lactation does not comply with this indicator.

ARTICLE 3: GUARANTEE OF BASIC HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 3.1 Is there legislation establis- Yes • Constitution (Amendment) Act 1997, s Although not specifically hing national human rights 42. Establishes a Humans Rights aimed at monitoring the machinery charged with Commission. implementation of law and promoting and protecting • Human Rights Commission Act 1999. policy for the advance- human rights including Part IV, s 17. Gives the Commission the ment of women, the women rights? power to investigate unfair discrimination Commission has the (on any of the protected grounds in the capacity to investigate Constitution) in a range of areas including discrimination on the employment, provision of goods and ground of sex in a range services, access to and participation in of areas. education, provision of training, provision of land and housing. 3.2 Is there legislation establi- No Fiji has a Ministry for shing a funded body to Women, Social Welfare monitor the implementation of and Poverty Alleviation. non-discriminatory law and Although the Ministry has policy for the advancement of some power to monitor women? implementation of non- discriminatory law and policy for the advance- ment of women it is not established by legislation. It is therefore more easily subject to removal in times of economic or political upheaval and there is therefore no compliance with this indicator.

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ARTICLE 4: ACCELERATION OF EQUALITY BETWEEN MEN AND WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 4.1 Does the Constitution contain Partial Constitution (Amendment) Act 1997, s 44. The special measures a temporary special measures Special measures for all categories of persons provision enables affirma- provision? who are disadvantaged in equality of access to tive action only in the education and training, land and housing, areas specified and participation in commerce and in all levels and therefore does not cover branches of service of the State. the breadth of situations in women’s lives in which they experience discrimi- nation. 4.2 Are special measures exempt Partial Constitution (Amendment) Act 1997, s 44(4). The Constitution does from discrimination on the A person taking special measures does not not protect women from grounds of sex, marital status, discriminate against another person on all discrimination on the basis sexual orientation, HIV status grounds protected in the Constitution. of either marital status or and disability? HIV status.

ARTICLE 5: SEX ROLES AND STEREOTYPES

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 5.1 Is there a provision in the Partial Constitution (Amendment) Act 1997, s 6(b). The Constitution does not Constitution which gives Preserves the ownership of Fijian land guarantee the precedence precedence to a constitutional according to Fijian custom. of equality over custom guarantee of equality if there law. However, the is a conflict between custom presence of strong anti- and equality law? discrimination provisions in the Constitution and the absence of express re- cognition of custom other than in relation to Fijian land means there is partial compliance on this indicator.

ARTICLE 6: EXPLOITATION OF WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 6.1 Is the act of soliciting No Penal Code [Cap 17], s 168. Any common The legislation crimina- decriminalised? prostitute who loiters or solicits in a public lises sex work by both place, any person who solicits for immoral males and females. purposes - $50 fine or 3 months imprisonment. Criminalising the act of soliciting punishes sex workers for their occupation, denying them the right to choose their employment and is non- compliant with the indicator and with CEDAW.

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ARTICLE 6: EXPLOITATION OF WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 6.2 Is aiding and abetting No Penal Code [Cap 17] 1945 The legislation criminal- consensual acts of soliciting • s 166, s 167. Male or female who lives off ises living off sex work or decriminalised? the earnings of prostitution - operating brothels. Al- misdemeanour. though applicable to both • s 169. Using premises for prostitution - males and females crim- misdemeanour. inalising those who aid • s 170. Operating a brothel - fine up to and abet prostitution does $100,000 or 5 years imprisonment. not assist women who work in this field to carry out their work in a non- exploitative and protected environment. 6.3 Is it a criminal offence to Partial Penal Code [Cap 17] 1945, s 171. Induces a Although providing some procure any woman or girl woman or girl by false pretences to permit any protection from ex- under 18? man to have unlawful carnal knowledge - 10 ploitation, the offence years. excludes situations where girls or women who are induced into prostitution against their will by threat, drugs or other means of coercion. 6.4 Does employment legislation No Sex workers should be including occupational health entitled to all the rights and and safety legislation protect protections of other sex workers? workers. 6.5 Is the trafficking of women No prohibited? 6.6 Is sex tourism prohibited? No

ARTICLE 7: POLITICAL AND PUBLIC LIFE

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

7.1 Is there an equal right to vote? Yes Constitution (Amendment) Act 1997, s 55. Universal suffrage. 7.2 Is there equal eligibility for Yes Constitution (Amendment) Act 1997, s 58, s political representation? 6 (f). Every citizen has the right to be a candidate in free and fair elections. 7.3 Is there legislative provision No Despite equal eligibility to for minimum quotas of enter parliament currently women in Parliament? only 8 women out of 71 hold seats in the lower house and 5 out of 32 in the upper house in the Fiji parliament. Quotas, which have raised numbers of women in parliament in other countries, may assist in achieving substantive equality in this area.

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ARTICLE 7: POLITICAL AND PUBLIC LIFE

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 7.4 Do women have an equal Yes There is no legal barrier right to participate in to participation. NGOs? 7.5 Is there legislation (other No The Charitable Trusts than Charitable Societies Act 1945 enables org- legislation) enabling NGOs anisations to register but to register and mobilise to the purpose of the promote the advancement organisations are limited of women, without political to non-political ‘chari- interference? table’ work.

ARTICLE 8: INTERNATIONAL REPRESENTATION AND PARTICIPATION

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

8.1 Do women have an equal Partial There are no legal barriers opportunity to represent to representing gover- government at international nment at international level and participate in the level and participating in work of international the work of international organisations? organisations. However, few women represent government at the international level and the introduction of a quota system would ensure full compliance with this indicator.

ARTICLE 9: NATIONALITY AND CITIZENSHIP

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

9.1 Do women have an equal right Yes Constitution (Amendment) Act 1997, s 8, s to acquire, change or retain 10, s 12, s 13. their nationality? Citizenship Act 1998, s 19, s 21, s 22. 9.2 Does marriage to a non- Yes Constitution (Amendment) Act 1997, s 14. To be compliant with this national or change of husband’s Citizenship Act 1998, s 21(6). Although indicator, the marriage of nationality affect wife’s cannot have dual citizenship can regain a woman to a non-national nationality? If there is no citizenship if renounce other citizenship. should not affect her change to a wife’s nationality nationality. The legisla- after marriage, then there is full tion does not alter the compliance with this indicator. nationality of female citizens upon marriage and therefore there is full compliance with this indicator and with CEDAW. The legislation also provides a non- discriminatory means of

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ARTICLE 9: NATIONALITY AND CITIZENSHIP

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY protecting women who renounce their citizen- ship to join their husband in another country. 9.3 Do both spouses have equal Yes Constitution (Amendment) Act 1997, s 16, s rights to residency, citizenship 12(7). Citizenship Act 1998, s 25. and employment when married to a non-national? 9.4 Do both spouses have an equal Yes Constitution (Amendment) Act 1997, s 10, s right to determine the 12. Citizenship Act 1998, s 21. nationality of children? 9.5 Do women have an equal right Yes Passport Act 2002, s 3. to obtain a passport?

ARTICLE 10: EDUCATION

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

10.1 Does the legislation guarantee Yes Constitution (Amendment) Act 1997, s 39(1). This provision provides women and girls equal access Every person has the right to basic education a constitutional guaran- to education? Do women and and equal access to educational institutions. tee of equal access to girls have equal access to education. education? 10.2 Is there legislation that creates Yes • Constitution (Amendment) Act 1997 s The legal capacity for special measures for the 44. The Parliament must provide equality affirmative action in the advancement of women in of access to all categories of persons area of education is education? who are disadvantaged to education and established by these training. provisions. • Human Rights Commission Act 1999, s 21. Provides for affirmative action in relation to ‘access to and participation in education’ on any protected ground in the Constitution (includes gender, disability and sexual orientation). 10.3 Is there compulsory primary Yes Compulsory Education Regulation 1997 These orders provide for education for girls and boys? made pursuant to the Education Act [Cap 262] the gradual achievement 1978, s 22. of compulsory education • Compulsory Education (Rakiraki and throughout Fiji for Cakaudrove) Order 1997. females and males aged • Compulsory Education (Eastern and 6-15. Macuata/Bua) Order 1998. • Compulsory Education (Nausori, Nadroga/Navosa and Ba/Tavua) Order 1999. 10.4 Is there compulsory secon- Yes Compulsory Education Regulation 1997 dary education for girls and made pursuant to the Education Act [Cap 262] boys? 1978, s 22.

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ARTICLE 10: EDUCATION

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

• Compulsory Education (Rakiraki and Cakaudrove) Order 1997. • Compulsory Education (Eastern and Macuata/Bua) Order 1998. • Compulsory Education (Nausori, Nadroga/Navosa and Ba/Tavua) Order 1999. 10.5 Is family life (reproductive and No sexual education) compulsory in schools? 10.6 Is there a legislative pro- No hibition on expulsion from school because of pregnancy?

ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

11.1 Are there anti-discrimination Partial Human Rights Commission Act 1999. These provisions cumul- provisions in employment • s 17(1). Provides it is unfair discrimination atively provide legal legislation on the grounds of to directly or indirectly differentiate protection for many sex, marital status, disability, against or harass any other person on the workers from discrimi- pregnancy, sexual orientation ground of sex, sexual orientation and nation on the grounds of and HIV status with sanctions? disability in employment, the making of gender, sexual orien- an application for participation in a tation and disability. partnership, or in the provision of These rights, however, approval for any trade or calling, are not enshrined in the provision of training Employment Ordinance. • s 38. Sanctions include declaration of discrimination, making void and unenforceable anything that constitutes unfair discrimination, restraining order, damages, specific performance, and any other relief. Constitution (Amendment) Act 1997. • s 44. Parliament must provide equality of access to all categories of persons who are disadvantaged to training and participation in commerce and in all levels and branches of service in the state. • s 140(c). In relation to recruitment, promotions and management of state service men and women equally should have adequate and equal opportunities for training and advancement. Public Service Act 1999. • s 4(6). Must provide a working environment free from discrimination.

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

11.2 Are there special measures Partial Constitution (Amendment) Act 1997, s 44. provisions for the advance- Provides for the introduction of special ment of women in measures for disadvantaged groups so as they employment? can access to education and training, participation for commerce and in all levels and branches of state service. This may have the effect of advancing women in employment in some contexts. Human Rights Commission Act 1999, s 21. Provides for affirmative action on any prohibited ground in the Constitution (which includes gender, sexual orientation, and disability) in the areas listed in s 17 which include: employment, training for employment, provision of services goods or facilities including facilities by way of banking or insurance or for grants, loans, credit or finance. 11.3 Do women enjoy equal Partial • Employment Ordinance [Cap 92] 1965. Although many women conditions of work including No sick leave or recreational workers are provided leave, superannuation and entitlements for any worker. Employee with equal conditions of Workers Compensation? includes domestic servant but the Labour work, the exclusion of Department has ruled this excludes all domestic workers, domestic workers in private dwellings. casual workers and • Workers Compensation Act [Cap 94] outworkers in the 1965, s 2. Does not apply to casual various employment worker or outworker. laws impacts pred- • National Provident Fund Act [Cap 219]. ominantly on women Exempts domestic workers from who are typically participating in the superannuation fund. employed in such jobs. They are therefore unable to access the range of working conditions provided to other workers. 11.4 Does the legislation provide Partial • Penal Code [Cap 17] 1945, s 154(4). An This provision could be sexual harassment protection offence to ‘insult the modesty’ of any girl used in relation to sexual from employers and co- or woman with words or object. harassment but it is workers? • Human Rights Commission Act 1999, s limited in its scope and 17. Sexual harassment is unfair is unlikely to be used by discrimination and can be direct or many women. indirect. It is unfair discrimination to sexually harass in a range of employment related areas including: the making of an application for employment, employ- ment, provision of approval for trade, calling or profession; application for membership of employer or employee organisation excluding private clubs.

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

• Public Service Act 1999, s 6. An Although not specifi- employee must treat everyone with cally aimed at addressing respect and courtesy and without sexual harassment, this coercion or harassment of any kind. provision could be used by employees in some circumstances. 11.5 Does the definition of sexual No None of the possible harassment encompass the legal avenues noted breadth of unwanted above in 11.4 in relation behaviours? to sexual harassment incorporate a definition that accords with the breadth of harassement and behaviours women can experience in the workplace. 11.6 Does the legislation contain No No legislative guarantee an equal pay provision? of equal pay for men and women doing the same job. 11.7 Does the legislation contain No pay equity provisions? 11.8 Does the legislation provide Partial Public Service Act 1999, s 14. Equal retirement Although an equal for an equal retirement age? age for all workers. retirement age is specifically guaranteed in the public service, no similar guarantee is contained in the Employment Ordinance [Cap 92] 1965 to protect non public service workers. 11.9 Are there restrictions on Partial Employment Amendment Act 1996, s 65. The To be compliant with this women’s choice of employ- Minister may after consultation with the indicator, there should ment? If there are no Labour Advisory Board prescribe conditions be no restrictions on a restrictions on women’s for the employment of women on night work woman’s choice of choice of employment then in any industrial undertaking. Night work employment. Although there is full compliance with means between 6pm to 6am. there is no specific this indicator. legislative restriction on women’s employment, the Minister has the legal capacity to place restrictions on night work for women but not for men. Therefore compliance with this indicator and with CEDAW is partial.

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ARTICLE 11: EMPLOYMENT

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 11.10 Does the legislation provide No Health and Safety at Work Act 1996, s 9. Although there is a for health protection during Employers have a general duty to ensure the general duty to provide pregnancy? health and safety at work of all workers. medical care, there is no particular responsibility on employers to provide health pro- tection for pregnant workers. 11.11 Does the legislation provide Partial Employment Ordinance [Cap 92] 1965. Maternity leave pro- paid maternity leave of not less • s 74. With a medical certificate entitled visions do not meet the than 14 weeks? to 42 days paid leave prior to confinement standards recomm- and 42 days after confinement. ended by the ILO. • s 74(2). If worked not less than 150 days during previous nine months entitled to allowance of $5 per day. • Up to 3 months total leave with a medical certificate but over 84 days not paid. 11.12 Does the legislation provide Partial Employment Ordinance [Cap 92] 1965, s 79. In the absence of the protection from dismissal Cannot be dismissed during approved leave provision of (unpaid) because of pregnancy or period of 84 days or up to 3 months with a extended leave to care maternity leave? medical certificate. for young children, many women without childcare facilities are likely to lose their employment. 11.13 Does the legislation guarantee No the provision of childcare by employer or state? 11.14 Does the legislation provide No reasonable nursing time during work hours?

ARTICLE 12: HEALTH CARE AND FAMILY PLANNING

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

12.1 Do women have access to No Penal Code [Cap 17] 1945 These provisions are safe and legal abortion • s 172. Any person who administers discriminatory to women facilities? poison or noxious thing or any other because: means with intent to procure abortion -14 • The criminalisation years. of abortion denies • s 173. Any woman with intent to procure women access to her own abortion - 7 years. safe medical facilities • s 174. Supply drugs or any thing to with and encourages the intent to procure abortion - 3 years. use of unsafe • s 221. An offence to kill unborn child methods and faci- capable of being born alive (28 weeks or lities. more) - life imprisonment. • The criminalisation But of abortion restricts 186 LEGISLATIVE COMPLIANCE OF FIJI ISLANDS

ARTICLE 12: HEALTH CARE AND FAMILY PLANNING

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY • s 221(1). Not an offence if in good faith women’s autonomy for the purpose of preserving the life of and right to choose the mother if and when they • s 234. A surgical operation to save a have children. mother’s life in good faith and with • The serious penalty reasonable care that has the result of for women who aborting the foetus is lawful. procure their own abortion after 28 weeks (life im- prisonment) fails to account for the reasons why wo- men may choose to abort. Note, however, that abortion is lawful if conducted to save a mother’s life.

ARTICLE 13: ECONOMIC AND SOCIAL BENEFITS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

13.1 Do women have an equal right Yes Social Justice Act 2001, Schedule. Enables There is only a limited to family benefits regardless of affirmative action to provide cash allowances social security system in marital status? and relief supplies in relation to widows, solo Fiji. parents and deserted women. 13.2 Do women have an equal right Yes Human Rights Commission Act 1999, to receive bank loans, • s 17. Unlawful to discriminate in ‘the mortgages and financial provision of goods, services or facilities credit? including facilities by way of banking or insurance for grants, loans credit or finance’ on the basis of gender. • s 21. Provides for affirmative action on any prohibited ground in the Constitution (which includes gender, sexual orientation, and disability) in the areas listed in s 17 which includes provision of services goods or facilities including facilities by way of banking or insurance or for grants, loans, credit or finance. Constitution (Amendment) Act 1997, s 44(1). Parliament must provide programs to achieve equality of access to participation in commerce. 13.3 Do women have an equal right Yes There is no legislative to participate in recreational barrier preventing wo- activities, sports and cultural men from participating in life? recreational activities, sports, and cultural life.

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ARTICLE 14: RURAL WOMEN

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

14.1 Is there legislation that Partial Human Rights Commission Act 1999, s 21. Many women in Fiji live provides for special measures Provides for affirmative action on the basis of in rural communities and it is crucial that Fiji to advance substantive gender in relation to the areas in s 17 which incorporates special equality for rural women? include the provision of land, housing or any measures into either the other accommodation. national constitution or legislation to advance substantive equality. The legislation does permit the introduction of affirma- tive action programs to assist rural women towards de facto equality in some of the areas where discrimination is experienced, in partial compliance with CEDAW.

ARTICLE 15: EQUALITY BEFORE THE LAW AND CIVIL MATTERS

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

15.1 Does the Constitution Yes Constitution (Amendment) Act 1997, s 38. guarantee equality before the ‘Every person has the right to equality before law? the law’. 15.2 Do women have an equal Yes Constitution (Amendment) Act 1997, s 29(1) capacity in civil matters – can Every party to a dispute has the right to have women sue? the matter determined by a court of law or an independent and impartial tribunal.

15.3 Do women have an equal Yes No legal barrier to right to participate in courts women’s equal rights in and tribunals at all stages? courts and tribunals at all stages. 15.4 Do women have an equal Yes No legal barrier to right (regardless of marital women’s equal right to status) to conclude contracts conclude contracts and and administer property? administer property. 15.5 Do women have an equal Yes Succession, Probate and Administration [Cap right to be executors or 60] 1970, s 7. administrators of estates? 15.6 Is there legislation nullifying No No specific legislation all contracts and instruments that has this effect. that limit women’s legal capacity? 15.7 Do women have an equal Yes No legal barrier to right to choose residence and women’s equal right to domicile? choose residence and domicile.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

16.1 Does the legislation guarantee Yes Family Law Act (2003) s 32(2)(d)(i). Marriage entry into marriage with full is void if consent was gained by duress. and free consent? 16.2 Does the legislation allow Yes Family Law Act (2003) s 32(2)(d)(i). Marriage marriages to be nullified if they is void if consent was gained by duress. took place under force, duress or undue influence? 16.3 Is there an equal minimum age No Marriage Act [Cap 50] 1969, s 12. Minimum The CEDAW Commi- of 18 for marriage? age for males is 18 and the minimum age for ttee has recommended girls is 16. 18 for males and females as the minimum age for marriage. 16.4 Is there a legislative Partial Marriage Act [Cap 50] 1969, s 12. Marriage is prohibition on child marriage? null and void if either party is not 16. 16.5 Does the legislation require Yes Marriage Act [Cap 50] 1969, s 25. registration of marriage in official registry? 16.6 Does the legislation prohibit Yes Penal Code [Cap 17] 1945, s 185. Bigamy is a bigamy? criminal offence - 5 years imprisonment. 16.7 Do women have an equal right Yes There is no legal barrier to choose a family name? preventing women from choosing a family name. 16.8 Is the consent of both parents No Marriage Act [Cap 50] 196913. (1) If either of equal in marriage of minors? the parties to a proposed marriage is under the age of twenty-one years, such marriage shall not be performed without the prior consent of- (a) the father of such party; or (b) in the event of the father being dead or out of Fiji, the mother of such party. 16.9 Are both spouses equal in No Constitution (Amendment) Act 1997, s 6(b). The legislation does not ownership, acquisition, Preserves the ownership of Fijian land guarantee equality to management, administration, according to Fijian custom. both spouses in enjoyment and disposition of ownership, acquisition, property? management, adminis- tration, enjoyment and disposition of property. Land tenure is instead based on custom (which is guaranteed by the Constitution) where women are not fully equal in ownership, acquisition, manag- ement, administration, enjoyment and dis- position of property.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.10 Does the legislation provide Yes Family Law Act 2003. Court can make an order These provisions pro- for a maintenance and custody for maintenance for the child. vide for the assessment order during separation based • s 88. The court may make any order it of maintenance for on need? thinks proper. It must consider the financial spouses and children support necessary for the maintenance of based on the recom- the child. mended criteria in the • s 90. The court must have regard to the indicator. The provisions age of the child, the manner in which the are therefore in full child is being educated or trained, any compliance with special needs of the child. CEDAW. • s 91. The income, earning capacity, property and financial resources of parties and commitments to support themselves and others. • s 157. Court can make an order for maintenance of spouse. The court must consider the age and state of the parties, the income, financial resources and property, the commitments of each to themselves and others, the eligibility of either for an allowance, pension or benefit, whether it would enable the other party to train and therefore increase their earning capacity, the extent to which the person whose maintenance is under consideration has contributed to the earning capacity of the other, if either party is cohabiting the financial circumstances of that situation. • s 66 (4). Court can make an order for The interests of the child are paramount and thus custody. When making a parenting order the legislation is in the court must regard ‘the best interests of full compliance with the child as the paramount consideration’. CEDAW. 16.11 Is there legislation to enable Yes Family Law Act 2003, women to occupy the marital • s 118. An injunction can be issued to home when property prevent a party from entering the marital settlement is not possible or home either for personal protection of a in situations of domestic parent or child or at the discretion of the violence? court. • s 202(f). Provides for an injunction relating to the use or occupancy of the matrimonial home. 16.12 Does the legislation provide Yes To be compliant with this for the restitution of conjugal indicator, the legislation rights? If the legislation does should not empower the not provide such an order courts to provide an then there is full compliance order for restitution of with this indicator. conjugal rights. The legislation does not provide for orders for

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY restitution of conjugal rights (which are discriminatory as they take away a woman’s autonomy to choose when and with whom she has sexual relations) and therefore is in full compliance with this indicator and with CEDAW. 16.13 Does the legislation provide Yes Family Law Act 2003, s 30(1). Can apply for The legislation pro- for no-fault divorce? dissolution on the grounds that the marriage vides for fault-free has broken down irretrievably after 12 month divorce in full separation. compliance with the indicator. 16.14 Is there a duty on the court to No Family Law Act 2003, s 9. The Court has a To be compliant with promote reconciliation? If the duty to give consideration to the possibility this indicator, there legislation does not contain of reconciliation. If the judge believes there is should not be a duty on such a duty then there is full a reasonable possibility of reconciliation can the court to promote compliance with this indicator. adjourn the hearing, interview in chambers reconciliation between and nominate a marriage counsellor. estranged spouses. The legislation does impose a duty on the court and is discriminatory and non-compliant with CEDAW because it removes women’s choices or reduces their autonomy to choose to leave a relationship. 16.15 Does the legislation provide Yes Family Law Act 2003, s 162. The court must The non-financial for an equal division of take into account the financial contribution and contribution of either property after divorce improvement to property by both parties, non- party is to be including recognition of financial contribution made to the considered and the unpaid contribution; future improvement of the property, the contribution legislation specifically needs and future earning to the welfare of the family including in the identifies the work of capacity calculated? capacity of homemaker or parent. The court homemaker and must also take into account the age and state parent. This recogn- of health of the parties, the income and ises that such work financial resources of the parties, whether one contributes equally to party has care of children, the commitments the income and assets of both parties to support themselves and any of the family. This is in children, the financial resources available to full compliance with either party who is cohabited with another the indicator. person and any other circumstances.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY

16.16 Does the legislation provide Yes Family Law Act 2003, for the payment of child • s 88. The court may make any order it support after divorce based thinks proper. It must consider the on need? financial support necessary for the maintenance of the child. • s 90. The court must have regard to the age of the child, the manner in which the child is being educated or trained, any special needs of the child. • s 91. The income, earning capacity, property and financial resources of parties and commitments to support themselves and others. 16.17 Does the legislation provide Yes Family Law Act 2003, s 157. Court must for the payment of consider the age and state of the parties, the maintenance for ex spouse income, financial resources and property, the based on commitments, commitments of each to themselves and income, earning capacity, others, the eligibility of either for an and assets? allowance, pension or benefit, whether it would enable the other party to train and therefore increase their earning capacity, the extent to which the person whose maintenance is under consideration has contributed to the earning capacity of the other, if either party is cohabiting the financial circumstances of that situation. 16.18 Is custody and access to Yes Family Law Act 2003, s 66 (4). When making children based on the best a parenting order the court must regard ‘the interests of child regardless best interests of the child as the paramount of relationship of parents? consideration’. 16.19 Does the legislation provide Yes To be complaint with damages for adultery? If there this indicator, the is no provision for damages legislation should not then there is full compliance provide damages for with this indicator. adultery. Damages for adultery are discrimin- atory as they seek to punish the sexual behaviour of consen- ting adults and interferes with their autonomy. The legislation does not provide a right to damages for adultery and therefore is in full compliance with the indicator and with CEDAW.

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ARTICLE 16: PERSONAL AND FAMILY LAW

INDICATOR COMPLIANCE RELEVANT LEGISLATION COMMENTARY 16.20 Do women have an equal right Yes Adoption of Infants Act [Cap 58], 1967. to guardianship, wardship, trusteeship and adoption? 16.21 Does the legislation recognise No The new family law regime excludes de facto de facto rights including same- relationships leaving sex on the same basis as women in such marriage? relationships without rights to property or maintenance after sepa- ration. Same-sex rights are also not recognised despite a constitutional guarantee of non- discrimination on the basis of sexual ori- entation. 16.22 Does the legislation provide Yes Family Law Act 2003, s 138. The court can an order for establishing order parentage testing procedure. parentage? 16.23 Does the legislation provide Yes Family Law Act 2003, s 100. Proper for a contribution to contribution towards maintenance of the mother pregnancy and childbirth costs in relation to the birth, reasonable medical by father to unmarried mother? expenses and if child stillborn funeral expenses. The court must take account of the income, earning capacity, property and financial resources of both parties, commitments of both to themselves and others. 16.24 Does the legislation provide Yes Family Law Act 2003, for the payment of child • s 88. The court may make any order it thinks support for children born proper. It must consider the financial support outside marriage? necessary for the maintenance of the child. • s 90. The court must have regard to the age of the child, the manner in which the child is being educated or trained, any special needs of the child. • s 91. The income, earning capacity, property and financial resources of parties and commitments to support themselves and others. 16.25 Does the legislation provide Partial Succession, Probate and Administration Act Inheritance is equal in the for equal inheritance laws? [Cap 60] 1970. legislation. However, Fijian custom in relation to land has constitutional status and may lawfully discriminate against women. 16.26 Is there legislation requiring Yes Family Law Act 2003, s 26 (e). A court the court to apply CEDAW and exercising jurisdiction under this Act must, in CRC to domestic family law the exercise of that jurisdiction, have regard to when relevant? CROC (1989) and CEDAW (1979).

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