FIJI: National Laws

Summary: General overview of Fiji's national legal provisions on children's rights, including guidance on how to conduct further research. Please note that this page has not yet been updated to take account of the Constitution of 2013.

National laws on children's rights

Status of the CRC in national law
The Constitution of Fiji was suspended in 2009, so the status of international treaties, including the Convention on the Rights of the Child (CRC) is currently unclear.

Section 43 of the previous Constitution required the courts to interpret the rights provisions of the Constitution with reference to international Conventions, including the CRC. This allowed the courts to interpret legislation where possible in conformity with the Convention, but where domestic legislation explicitly contradicted the Convention, that legislation had to be applied by the courts. Fijian courts have cited the CRC in their judgments.

Constitution: the Constitution of Fiji was suspended in 2009 and has not yet been replaced. All other laws remain in force unless amended or repealed by decree. A new Constitution is expected in September 2013.

Chapter 4 of the former Constitution of Fiji contained a extensive rights provisions that applied regardless of age, but a number or rights provisions that specifically addressed the rights of children could be found throughout the Constitution:

• Section 10: provided that all children born in Fiji on or after the date that the Constitution came into force were citizens of Fiji, unless a child's parents had diplomatic immunity accorded to envoys of foreign sovereign powers or if neither parent was a citizen of Fiji.
• Section 12: set out other means by which a child could become a citizen of Fiji, including by inheriting citizenship through a parent, being adopted by a citizen, through a parent becoming a citizen or by application on behalf of a parent or guardian.
• Section 16: entitled children of citizens a right to reside in Fiji.
• Section 23: allowed for the deprivation of liberty of a person under the age of 18 for the purposes of education or welfare, provided that the deprivation took place with the consent of the child's parent, guardian or upon the order of a court.
• Section 27: provided that detained children, so far as is practicable, were to be kept apart from adults, unless to do so would not be in the child's best interests.
• Section 29: provided that if a child were called as a witness in criminal proceedings, arrangements for taking the child's evidence must have due regard to the child's age.
• Section 34: provided that a law would not violate constitutional protections of freedom of movement where that law allowed the High Court to order the removal of a child from Fiji for the purposes of returning that child to the lawful custody of a parent or guardian.
• Section 35(3): established a right of religious communities or denominations to provide religious instruction as part of any education provided by them, regardless of whether they received financial assistance from the State.
• Section 35(5): permitted parents or guardians to consent to the attendance of their children at religious ceremonies, observances and to the instruction of children in education of their children in places of education.
• Section 39: established a right to basic education and to equal access to education institutions for every person.

Legislation: there is no comprehensive or consolidated Children's Act in Fijian law, rather legislation relevant to children can be found throughout various pieces of legislation. Since the Constitution was suspended in 2009, a great deal of legislation relevant to children has been passed in the form of decree. Legislation of particular relevance to children includes, but is by no means limited to:

• The Crimes Decree No. 44 of 2009
• The Penal Code (Cap. 17)
• The Criminal Procedure Code (Cap 21)
• The Domestic Violence Decree 2009
• The Marriage Act (Amendment) Decree 2009
• The Citizenship of Fiji Decree 2009
• The Public Emergency Regulations 2009
• The Administration of Justice Decree 2009
• The Human Rights Commission Decree No. 11 of 2009
• The Education Act (Cap. 262)
• The Employment Act (Cap. 92)

Legal Research
The website of the Fijian Parliament provides access to the last Constitution of Fiji (http://www.appf.org.pe/fiji.htm) and has published and index of national laws, but does not provide access to the texts of those laws (http://www.appf.org.pe/fiji.htm). The Pacific Legal Information Institute provides access to Fijian legislation passed between 1874 and 2009 (http://www.paclii.org/fj/legis/num_act/) and decrees passed since 1987 (http://www.paclii.org/fj/promu/promu_dec/). In addition, the Commonwealth Legal Information Institute (http://www.commonlii.org/links/2389.html) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/fiji.php) both provide access to a selection of legal and governmental resources.

Case Law
CRC jurisprudence
Fijian courts have cited the Convention on the Rights of the Child in their judgments, including in relation to corporal punishment in schools (http://www.crin.org/Law/instrument.asp?InstID=1450) and compensation for violations of children's rights (http://www.crin.org/Law/instrument.asp?InstID=1514).

Case Law Research
The Pacific Legal Information Institute maintains a database of the decisions of the Fijian Supreme Court (http://www.paclii.org/fj/cases/FJSC/), Court of Appeal (http://www.paclii.org/fj/cases/FJCA/), High Court (http://www.paclii.org/fj/cases/FJHC/) and Magistrates Court (http://www.paclii.org/fj/cases/FJMC/). Privy Council decisions in relation to Fiji are available through the website of the British and Irish Legal Information Institute (http://www.bailii.org/uk/cases/UKPC/), but the Council has not had jurisdiction over Fiji since 1987. All resources are provided in English.

Compliance with the CRC
Fiji has not reported to the Committee on the Rights of the Child since 1998 which, in conjunction with the abrogation of the Fijian Constitution and the large amount of legislation passed since, makes it difficult to comment on the current compatibility of Fijian law with the Convention on the Rights of the Child. At the time of its 1998 Concluding Observations, the Committee noted that the State had undertaken steps to amend national law to reflect the provisions of the Convention, but expressed concern at the slow pace of reform. The Committee also raised concerns that the State's juvenile justice legislation was inconsistent with the Convention, as was the law on adoption and child labour. Legislation passed since 1998 has reformed these areas of domestic law, but is yet to be reviewed by the Committee for conformity with the Convention.

Fiji is next due to be reviewed by the Committee in September 2014.

Current legal reform projects
The process of drafting a new Constitution is currently underway and is scheduled to be completed by September 2013.