Fiji– Twentieth session - 2014
29 October 2014 - 09.00 a.m. - 12.30 p.m.
III. Development of normative and institutional framework for human rights
A. Normative framework
8. The Bill of Rights Chapter includes inter alia: [...] rights of children [...].
Freedom of association
51. Since the amendment of the Act, no organisation has been refused permits for public meetings or assemblies. In December 2012, the NGO Coalition for Human Rights was granted a permit to march through the streets in the capital city to celebrate International Human Rights Day. In February 2013, the organising committee for the One Billion Raising Campaign was given a permit to march through the capital city in order to address violence against women and girls.
The rights of persons living with disabilities
54. The Government is committed to addressing disability needs in Fiji and developing a more inclusive society. The Government with the Fiji National Council for Disabled Persons has formulated A National Policy on Persons Living With Disabilities 2008-2018 (hereafter the ”Policy”). The Policy lists the key pillars of development needed to cultivate an inclusive society such as: [...]
(c) Effective Education Services and Programmes; [...]
(e) Promoting the Rights of Women and Children with Disabilities; [...].
The Right to education
61. The right to education is enshrined under section 31 of the Constitution. Pursuant to this section, the State must use all measures within its means and resources to achieve the right to free early childhood, primary, secondary and further education. The onus to prove that it does not have the resources to implement this right rests with the State.
62. In 2013 the Government announced its intention to provide free education for primary and secondary school students. This investment in the education of Fijian children ensures a competent and competitive Fijian workforce. Over 900 schools in Fiji have received education grants.
63. In addition to the provision of free education at Primary and Secondary level, the Government has also made a commitment to the education of tertiary students. In line with theme of ‘Building a Smarter Fiji’, the Government has announced a number of initiatives ensuring the youth of Fiji access to tertiary education , one of which is a low interest loan to any Fijian student who is accepted at any of the tertiary institutions in Fiji. The Tertiary Education Loan Scheme (TELS) covers the cost of tuition and will not be repaid until after a student has graduated and entered employment. The Government has allocated 600 scholarships for tertiary students who achieve the highest marks in the Fiji Seventh Form Examination under the National Toppers Scheme.
64. The Ministry of Education has also made transportation accessible to students through bus fare assistance schemes and free transportation using a zoning policy.
Recommendations relating to children’s rights particularly in regards to access to education and health services (recommendation 10)
73. The Government, through the Bill of Rights is committed to the preservation of child rights and the right to education. A policy creating inclusive education in Fiji was formulated to ensure all children are given the opportunity to learn regardless of difficulties, disabilities or differences, (Refer to Part IV, Right to Education of this report). The current curriculum has been modified to provide for students with special needs, for example, the training of braille teachers and increasing the number of braille publications. Disability friendly school facilities have been improved in certain schools, the Ministry of Health works in collaboration with Ministry of Education in making health services accessible to children. Health screenings are facilitated periodically for all primary schools to ensure immunisation and dental care for school children.
Recommendations related to review, enhancement and implementation of medium and long-term strategies of the Strategic Development Plan 2007-2011, the 2020 Plan for Indigenous Fijians, the National Policy for Persons living with Disabilities 2008- 2018 and the national AIDS strategy (recommendation 42)
91. Strategic priorities for social development include: reducing poverty; improving health services; making Fiji a knowledge based society through the alignment of the education policy with the nation’s development objective of ensuring education for all, based on principles of accessibility, quality; affordable and decent housing; rural and outer island development; climate change and disaster risk reduction; gender equality and employment, training, education and protection for children and the youth.
95. The Ministry of Education has a policy in place to ensure that students and school personnel living with HIV & AIDS are treated in a just, humane and life affirming way, ensuring students living with HIV & AIDS have the right to education.
Recommendation related to the integration of human rights education and training into education system (recommendation 43)
96. Basic components of human rights and civic education have been integrated in the Social Science curriculum and taught at Primary and Secondary levels.
Recommendation relating to measures to combat discrimination against women in all sectors of society (recommendation 55)
100. The Policy also promotes the development of women’s human rights in accordance with Fiji’s obligations under Convention on the Elimination of all forms of Discrimination against Women (CEDAW), and all other conventions and international laws relevant to women.
101. The strategies for the implementation of this Policy include: [...]
(c) Promoting women’s economic empowerment and gender equity in Government, in relation to the environment, in the education system, and within civil society, focussing on sustainable development; [...]
Recommendations relating to proposed laws on domestic violence, sexual offences against women, measures to provide free legal and psychological assistance to victims of domestic and sexual violence, measures to prevent sexual abuse and exploitation of children and implementation of actions as requested by ILO Committee of Experts on combating sexual abuse and exploitation of children (recommendations 66–69)
109. The Child Welfare Decree 2010 ensures mandatory reporting of cases of possible, likely or actual harm in relation to events discovered by a professional affecting the health and welfare of children. It emphasises the duty of care of the professional handling cases of possible child abuse and lists the reporting requirements in such cases to protect the confidentiality and integrity of such cases. Section 41(d) of the Constitution provides that every child has the right to be protected from abuse, neglect, harmful cultural practices, any form of violence, inhumane treatment and punishment, and hazardous or exploitative labour. Section 41(e) further stipulates that no child must be detained except as a measure of last resort, and while detained, to be held only for such period of time as necessary; to be kept separate from adults, and in such conditions that take account of the child’s sex and age. Section 41(2) states that the best interest of a child is the most important consideration in this matrix.
110. The Labour Ministry has trained a total of 40 labour inspectors and officers in investigating and conducting inspections in the area of child labour. The Child Labour Unit in the Ministry of Labour has visited 192 schools in 2012 and has trained 347 teachers on the prevention of child abuse and child labour. The Unit has also gazetted a hazardous workplace list which came into effect on 28 May 2013. The Unit also established and trained the Districts Inter-Agency Committee at a grass roots level in providing reports of child labour and child abuse.
112. The Child Protection Division’s (“CPD”) main role is to conduct criminal proceedings against sexual and other serious offences committed against children or matters where children are the primary witnesses.
113. The Child Protection Guidelines of 2009 set out the operations of the CPD such as steps taken in building rapport with the child victim, decisions on whether to oppose bail for the accused and considerations relating to pre-trial applications (witness protection applications). There are also witness protection applications which the CPD makes in Court in relation to name suppression, closed court mentions and hearings, and screen applications.
114. One of the core objectives of the CPD is to create a child-friendly environment to ensure child victims are comfortable in engaging with prosecutors. It also helps explain Fijian criminal justice system to victims, witnesses and their families to help them understand judicial processes. Witness Conferencing is also conducted with victims and witnesses to help familiarise them with court proceedings and procedure.
B. Constitutional and legislative framework
7. UNCT reported that the 2013 Constitution had introduced a bill of rights with positive elements such as the constitutionally protected number of economic, social and cultural rights, a list enumerating grounds on which discrimination was prohibited, and the inclusion of the rights of the child and the rights of persons with disabilities. The Constitution also guaranteed freedom from human trafficking [...].
III. Implementation of international human rights obligations, taking into account applicable international humanitarian law
A. Equality and non-discrimination
20. UNCT recommended strengthening birth registration and UNHCR recommended amending the Births, Deaths and Marriages Registration Act, to allow registration after 12 months have expired since the child’s birth, without incurring any penalty or fee.
28. Notwithstanding the elaboration of the National Plan of Action to Eradicate Trafficking in Persons and the recent prosecution of cases, UNCT noted that systems for follow-up on international trafficking had not been adequately addressed. UNCT also recommended the introduction of the draft Adoption Decree, which could curb issues relating to child trafficking.
29. While noting the setting up of a Child Labour Unit within the labour ministry in 2013, with assistance from ILO, UNCT recommended stricter enforcement of laws relating to child protection, as well as increased education and awareness about the dangers to children from street begging. UNCT also recommended a strengthening of specialized abuse/neglect/violence counselling services for children and young people; and the amendment of relevant laws to explicitly prohibit the use of corporal punishment in schools, alternative care settings and day care, to be consistent with policy changes that had already banned the practice.
C. Administration of justice, including impunity, and the rule of law
34. While reporting on improved hearings of children’s evidence pursuant to the Child Welfare and Domestic Violence Decrees, UNCT recommended that the Government adopt the draft community-based corrections and child justice decrees.
35. UNCT indicated that the Constitution had established a new Accountability and Transparency Commission, tasked with holding public office holders accountable.
G. Right to health
50. While noting significant progress in improving the health and well-being of women and children, UNCT called attention to the need to reduce the unmet need for contraceptives. UNCT recommended strengthening the legal and policy framework for the protection of the right to health, ensuring that marginalized segments of the population, including young persons, had access to sexual and reproductive health services.
H. Right to education
52. Reporting on a significant increase in resources (27 per cent) for education in the 2014 budget, and noting that no school was allowed to charge any kind of school fees or school levies starting from 2014, UNCT recommended that assistance be increased for early childhood education in rural areas and outer islands and that disadvantaged small rural and remote school should get an equitable share of the Tuition Fees Free Grant. CERD encouraged Fiji to evaluate its policies aimed at eliminating racial discrimination in access to education, such as school zoning. While UNCT indicated that gender balance in school enrolments had improved, CEDAW urged Fiji to take steps to overcome obstacles to girls’ and women’s education.
53. With reference to an accepted recommendation, UNESCO indicated that Fiji had not reported on specific measures to integrate the subject of human rights into the curriculum. CERD encouraged Fiji to integrate ethnic, cultural and religious diversity into the school curriculum to promote interethnic friendship and solidarity.
I. Persons with disabilities
54. UNCT reported that the Government had drafted a disability decree in 2013. Lack of awareness and understanding of the challenges and needs of persons with disabilities in Fiji meant that they reportedly faced prejudice, discrimination and rejection, and often extreme poverty. UNCT recommended regular trainings and awareness programmes for teachers on protecting the human rights of children with disabilities in the school system; and the upgrading of training for community-based rehabilitation assistants, with special funding from the Government, to better identify and rehabilitate persons with disabilities.
K. Migrants, refugees and asylum seekers
59. UNHCR made recommendations to Fiji, including that it amend its nationality laws to ensure that a child born on the territory of Fiji who was otherwise stateless acquired Fijian nationality.
C. Implementation of international human rights obligations, taking into account applicable international humanitarian law
2. Right to life, liberty and security of the person
21. ICAAD recommended that Fiji create guidelines that formally prohibit the use of reconciliation (traditional form or otherwise) as a mitigating factor for SGBV cases and permit the use of aggravating factors like the age of the victim or the threat of violence. It was imperative that Fiji also promote consistency in prosecutions and convictions of perpetrators by providing adequate funding for existing Sexual Offences Units and training local law enforcement officials who investigate cases of SGBV. FWCC recommended that the Government adopt gender specific domestic violence legislation; amend the Crimes Decree, which allowed reasonable belief in age as a defence to consensual sex with children between the ages of 13 and 16; impose a total ban on requirement of proof of resistance in sexual assault cases; change legal aid rules to allow representation of women in DVRO and Family Law cases even where the perpetrator (Husband) was represented by Legal Aid in criminal proceedings.
22. Given the alarming rates of child trafficking, JS3 reported that a more holistic approach was required, as requested by the International Labour Organization, and referred to an accepted UPR recommendation. The Government had made efforts to eliminate child sex and labour trafficking, although there had been insufficient progress in implementing formal procedures widely, and proactively identifying victims of trafficking among vulnerable populations. Additionally, the Child Welfare Decree required mandatory reporting of incidents of child abuse by police, teachers and health and social welfare workers, although it was unclear if this were practised.
23. Although the Ministry of Education had banned corporal punishment in schools, JS3 reported that it was still widely practiced. Global Initiative to End All Corporal Punishment of Children recommended that Fiji undertake law reform to achieve legal clarity that all forms of corporal punishment, without exception are prohibited, including through the repeal of the right of parents and others “to administer reasonable punishment”.
7. Right to health
49. JS3 reported that children exhibited high rates of nutritional deficiency, especially in rural and regional areas. Foods with a high nutritional value were often sold for income generation. Lack of transportation created difficulty in accessing health centres and medical attention. As such, many children were unable to have full enjoyment of rights recognized in the CRC, as recommended in the first UPR cycle.
8. Right to education
51. JS3 referred to reports that children were not attending school due to lack of access to resources and transport. MRG recommended that the Government carry out an audit of all affirmative action programmes, including scholarships and the Fiji National Provident Fund to identify the extent to which the neediest communities and individuals were receiving assistance. The “home zone” scheme should be reviewed periodically to assess its impact on the quality of education, and on whether schools had become more multi-ethnic. There should be additional state support for rural schools and those in depressed urban localities where educational standards were lowest.
99. The recommendations formulated during the interactive dialogue and listed below have been examined by and enjoy the support of Fiji:
99.10 Consider ratifying the optional protocols to the Convention on the Rights of the Child, which, inter alia, guard against the involvement of children in armed conflict (OP-CRC-AC) and guard against the sale of children, child prostitution and child pornography (OP-CRC-SC), which Fiji signed in 2005 (Namibia); Accede to the international treaties on human rights and ratify OP- CRC-AC and OP-CRC-SC (Portugal);
99.11 Take the necessary steps to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Ghana);
99.35 Build on the work of Fiji’s Ministry of Women, Social Welfare and Poverty Alleviation to improve the protection of women and girls by effectively addressing gender-based violence, particularly intimate partner violence, and by advancing programmes to combat gender discrimination (United States of America);
99.46 Take effective measures to prevent violence against women and children (Japan);
99.47 Take more vigorous public action against all forms of child trafficking for sexual exploitation, labour or other purposes (Lebanon);
99.48 Strengthen and implement policy measures to eliminate child trafficking (Maldives);
99.79 Further strengthen measures to ensure equal access to health services for all, while giving special attention to the needs of children, women and the elderly (Sri Lanka);
99.84 Adopt specific measures to combat discrimination against children with disabilities in accessing an inclusive education (Spain);
100.2 Transpose these international instruments, the International Covenant on Civil and Political Rights and its first Optional Protocol, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, the Convention on the Elimination of All Forms of Discrimination against Women, into domestic law strengthening among others legislative protection from gender violence and all forms of discrimination, particularly against women, children and on the ground of sexual orientation (Chile);
100.5 Repeal the right “to administer reasonable punishment” in the Juveniles Act 1974 and prohibit all corporal punishment of children, including in the home (Germany);