COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION EXAMINES REPORT OF FIJI
16 August 2012
The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined eighteenth to twentieth periodic report of Fiji on how that country is implementing the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.
Introducing the report, Peceli Vocea, Ambassador of Fiji to the European Union, said since Fiji’s last report to the Committee in 2008 the Government had made remarkable progress in implementing the Convention. First, the Ambassador was pleased to announce that on 10 August 2012 the Fijian Government withdrew all of its reservations to the Convention. Progress included establishment of a National Council for Building a Better Fiji, new legislation and the drafting of a new Constitution, the central premise of which would be a legal framework for common and equal citizenry as well as a Bill of Rights. Fiji was committed to reforming entrenched systems that had contributed towards the racial divide and led to the promotion of the interests of the i-Taukei-Fijian ethnic group to the detriment of other ethnic communities in Fiji.
During the discussion, Experts asked about penalties for racial discrimination and about the new law prohibiting racial vilification. Ethnic balance in the military, the definition and situation of indigenous peoples and measures to eliminate racial discrimination in the media and in education were also raised. The land issue remained very contentious, Experts said, asking for more information on ownership law and also the right to exploit resources in the ocean. Questions were also asked about the State party’s relationship with non-governmental organizations and civil society.
Alexei Avtonomov, Committee Chairperson, concluded that the State party did not currently have a Constitution, but he appreciated that they did not use that as a pretext not to come to the Committee for their review, and looked forward to Fiji’s next report.
Speaking in initial concluding remarks Waliakoye Saidou, Country Rapporteur for the report of Fiji, said Fiji’s barriers at an international level did not make implementation of the Convention easy, but there were many positive aspects of progress. In the short term the Committee hoped to see democratic institutions established as a result of fair elections that were entirely free of discrimination on racial grounds.
In concluding remarks, Mr. Vocea said that Fiji’s next report would be based on a permanent Constitution that would perhaps answer the Committee’s questions more satisfactorily. The Committee should be assured that current developments in Fiji were leading to modern and democratic institutions.
The delegation of Fiji consisted of representatives from the Permanent Mission of Fiji to the European Union, the Ministry of Strategic Planning, National Development and Statistics, the Office of the Solicitor General and the Ministry of Foreign Affairs and International Cooperation.
The Committee will issue its concluding observations and recommendations on the report of Fiji towards the end of its session, which concludes on 31 August.
The Committee will next meet in public at 3 p.m. this afternoon to review the situation of Belize in the absence of a report.
ALEXEI AVTONOMOV, Committee Chairperson, reminded the delegation and the Committee that today’s meeting – as with all country reviews conducted in public by the Committee – was being webcast live over the Internet, and anyone in the world could watch it. Hopefully Fiji was watching! The live webcast can be accessed via the following link: http://www.treatybodywebcast.org.
Report of Fiji
The combined eighteenth to twentieth periodic report of Fiji can be read via the following link: (CERD/C/FJI/18-20).
Presentation of the Report
PECELI VOCEA, Ambassador of Fiji to the European Union, said Fiji’s population was estimated at 858,000, of whom 60 per cent were i-Taukei or indigenous Fijians, 34 per cent were Fijian of Indian descent, and the remaining six per cent comprised Fijians of Pacific Island, Rotuman, Chinese and European ethnicity. Fiji was on track to achieve five out of the eight Millennium Development Goals. The three goals that Fiji was unlikely to meet were halving poverty, promoting gender equality, and combating HIV/AIDS and other diseases by 2015, although Fiji remained committed to achieving all eight. The Fijian economy was projected to grow by 2.7 per cent in 2012, despite severe floods in the first quarter of the year, thanks to growth in the manufacturing, mining and construction sectors, as well as expansion in the service and tourism industries. The future outlook for Fiji was promising. Measures to build social cohesion translated to the removal of racial profiling in official forms used by Government agencies, and to all citizens being referred to as ‘Fijians’ and recognized as such by law. Since Fiji’s last report to the Committee in 2008, the Government had made remarkable progress in implementing the Convention. Progress included establishment of a National Council for Building a Better Fiji, which was drafting a People’s Charter for Change, Peace and Progress. Today 7.6 per cent of Fiji’s schools with names that had ethnic connotations had now had their names changed, the education zoning policy was eliminating schooling preferences previously based on racial lines, while teaching of conversational i-Taukei and Hindi languages was now compulsory in all schools.
Fiji’s reservations to various articles of the Convention had been a longstanding issue in previous reports. The Ambassador was pleased to announce that on 10 August 2012 the Fijian Government withdrew all of its reservations to the Convention. A major structural reform was the process of adopting a new Constitution to establish a system of Government, the central premise of which would be a legal framework for common and equal citizenry as well as a Bill of Rights. Following concerns raised by the Committee, a more independent Fiji Human Rights Commission was re-established in 2009. An amendment to the Public Order Act in 2012 included prohibition of racial vilification and a 10-year custodial penalty for such acts. The 2009 Crimes Decree included offences relating to crimes against humanity, as well as an offence of the desecration of places of worship of any religion, which carried a 14 year prison sentence. The Media Industry Development Decree of 2010 enforced media conduct standards. The Government was mindful of the lack of representation of Fijians of Indian descent and other ethnic minorities in the police and military, but continued the policy of merit-based recruitment regardless of race or gender for all positions. The Government expected representation to improve when ethnic minorities began to view the military as a viable career option.
Land was another important development challenge, the principal issues being not ownership but access, productive use and equitable sharing of benefits. Large amounts of i-Taukei land in Fiji lay idle and the Land Reform Agenda aimed to make more i-Taukei land available for economic and social development purposes while ensuring security of tenure and fair returns to i-Taukei landowners. Fiji continued to hold that i-Taukei-Fijians should not be regarded as indigenous peoples under the United Nations Declaration on the Rights of Indigenous Peoples. Fiji was committed to reforming entrenched systems that had contributed towards the racial divide and led to the promotion of i-Taukei interests to the detriment of other ethnic communities in Fiji. Although some special provisions remained for i-Taukei, such as scholarships and special assistance to vulnerable rural communities, the Government recognized that indigenous rights (if any) were not in any way superior to any other human rights and that development assistance should be needs based with no special preference according to ethnicity.
Questions from the Experts
WALIAKOYE SAIDOU, Committee Member acting as Country Rapporteur for the Report of Fiji, welcomed the good news announced today by the delegation on Fiji’s lifting of its reservations to the Convention. Fiji was an island state in the South Pacific located to the north of New Zealand, and had a land surface of 18,272km consisting of an archipelago of 300 islands. Neighbouring countries were New Caledonia, Tonga and Samoa to the west and Tuvalu to the south. Religion had a strong influence: the majority of the population – 58 per cent – were Christian, with the rest of the population being made up of Hindus (33 per cent), Muslims (seven per cent) and Sikhs, other religions and atheists made up the final two per cent. The official languages were English, Fijian and Hindustani.
Although the delegation said it had consulted civil society organizations in compiling the report, the Committee asked for more information on how the Government worked with non-governmental organizations. The Committee recommended that the State party improve its data collection methods. The Criminal Code and Law on Public Order provided punishments for racial discrimination and racial hatred, but were they sufficient? The Rapporteur asked about segregation, even as an unintentional result of actions by private individuals: for example in many towns the income type of social groups, as well as ethnicity, influenced the location of households, so that inhabitants may be victim of a form of ostracism in which racial motives were combined with others.
Non-governmental organization reports stated that persons who could not speak English suffered discrimination, for example in legal processes, and many court documents were only available in English and translations into minority languages were not given. During Fiji’s Universal Periodic Review both Special Rapporteurs and non-governmental organizations reported racial attacks had occurred in Fiji, including by defence and security force agents, but there had been no punishment of the perpetrators. Could the delegation please comment?
Could the Committee hear more on how effective the implementation of all guidelines to prevent racial discrimination in schools had been? Had the Government withdrawn funding provided to private schools in cases of violations of the guidelines? Regarding culture, the Committee noted significant efforts had been made to improve cultural and social cohesion, but had the State party developed a national cultural policy?
The Rapporteur said that the difficulty in a State party tackling racial discrimination was creating a fair balance, in ensuring the human rights of one party without impinging on the rights of another ethnic group. Fiji appeared to be struggling with those difficulties, although it had made many good achievements. An Expert noted the measures taken to eliminate racial discrimination in the media, as well as in education – for example making the study of conversational-level i-Taukei at school. However, what about other minority languages?
The State party was correct in seeking a balance between ethnicities in Fiji. The Convention’s principle of non-discrimination sought to ensure that the assertions of one group did not ‘trump’ the rights of another. However, questions remained, such as how did the abolition of the Great Council of Chiefs fit into the pattern? Also the term i-Taukei-Fijian had negative connotations for some people; to what extent was it accepted in Fiji? The land issue remained very contentious and the figures did not look good in terms of land ownership. Could the Committee hear more about the difference between freehold land ownership and communal systems?
The new decree which prohibited racial vilification was interesting, an Expert said, noting that the phrase ‘racial vilification’ was broader than the phrase ‘racial hatred’. Was ‘racial vilification’ defined in law, and did it impact on freedom of expression and guarantees of political rights specifically and human rights more broadly?
Turning to the military, an Expert noted the delegation’s assertion that ethnic balance in the military would come in time once minorities, notably the Indo-Fijian population, began to consider having a career in the military. However, that approach had problems. The Indo-Fijian population may not be attracted as they may see the military as a strange place where they may not be comfortable. Special measures, or affirmative action, were required. The Indo-Fijian population should be encouraged to apply to jobs in the military and made to feel welcome.
With regard to the oceans, the indigenous peoples of Fiji had a right to own and work land, but did they have the right to take advantage of the natural resources contained in the Pacific, and did they have the rights to fish?
Response by the Delegation
Concerning comments by Committee members about the use of positive discrimination, a delegate said that the Fijian Government was firmly committed to ensuring that the Constitution would reflect the non-negotiable terms which included the prohibition of discrimination on the basis of race as well as other human rights. There were currently no specific provisions relating to racial discrimination in light of Article 1 of the Convention.
The Government was very much aware that merit-based equal opportunity could, in some instances, exclude certain groups from full participation in society whether they were ethnic minorities or other vulnerable groups like women. Since independence in 1970, and in particular since its first coup in 1987, Fiji had had entrenched systems and polices that favoured one ethnic community over others. It was not until the current Government came to power in 2007 that Fiji began to truly practice merit-based equal opportunity regardless of race. That was why the Government’s positi0on on the issue favoured equal opportunity before affirmative action, particularly in certain areas like elections and appointments to positions within the State. To ensure that vulnerable groups were catered for the Government had adopted a needs-based approach to socio-economic development assistance. An affirmative-action programme for vulnerable groups may be adopted in the future to correct any imbalances created by merit-based equal opportunity policies. Social justice was one of the non-negotiable principles provided for by the new Constitution.
Regarding a definition of ‘racial vilification’, the current provisions under the Public Order (Amendment) Decree of 2009 to a certain extent adopted the interpretation provided under Article 4 of the Convention, a delegation explained. Racial vilification was defined as follows: ‘conduct that offends, insults, humiliates, intimidates, incites hatred against, contains serious contempt for or revulsion or severe ridicule of another person or group of people on the grounds of their race, colour, national or ethnic origin’. In fact the definition went beyond the scope of Article 4 by specifying acts of violence both against a person or a group of people. The definition, however, did not require that there must be ‘superiority of the offenders group’ as the provisions merely required an act of violence. The provision applied specifically to public meetings or assemblies, but no general law forbade racial discrimination outright.
Turning to ethnic profiles for planning and development purposes, a delegate said that the Fijian Government still maintained such profiles which remained a major component of elements such as the national census, and employment and household income and expenditure surveys. Government policy was to remove racial profiles in areas where it served no useful purpose to record a person’s ethnicity – for example on immigration forms for Fiji residents returning to the country, and all court documents.
In answer to comments about the new ‘common national identity’, a delegate confirmed that all citizens of Fiji were now referred to as Fijians. That included i-Taukei, Fijians of Indian descent and Fijians of other ethnic minorities.
The Government had made, and continued to make, every effort to facilitate consultation and dialogue with civil society, the private sector and the people of Fiji on the implementation of the People’s Charter. A total of 17 civil society organizations were included in the consultation process prior to drafting the report, a delegate confirmed, in particular including some of Fiji women’s rights movements and Save the Children Fiji, among others.
Translators were provided in courts for any individual appearing in court whose first language was not English, for example Fijians who only spoke i-Taukei, Hindi, Chinese and other Pacific languages. There had been difficulties in cases involving foreigners where interpreters were not available locally, but every effort had been made by the courts to ensure any person who needed a translator had access to justice and due process.
The Fiji Human Rights Commission had been established to investigate contraventions of human rights, and was adequately funded by the Government to operate and provide the necessary services. The Committee had raised concerns about the composition and structure of the Commission, but Fiji remained committed to empowering the staff of the Commission to continue their work. The Commission was established independently of the Government, which provided annual financing of $730,000 to it. No changes to the structure of the Commission would be made until the Constitution was established.
Regarding judicial decisions, Fiji acknowledged that it had not been able to obtain adequate statistics on specific racial discrimination cases on the basis that most of the complaints and convictions against people of various race were based on the premise of economic or physical offences for which adequate remedies were provided for under the criminal system as well as compensation under civil proceedings as damages for putative measures. However, the judiciary had made a number of decisions pertaining to general human rights cases, such as the right to employment based on age, the right to movement within and outside of Fiji, and decisions on women’s rights to be protected from violence. The recent inclusion of prohibition of racial discrimination through hate speeches and hate crimes under the recently-enforced legislative framework meant that Fiji was confident that in the future complaints of racial discrimination would be adequately identified and dealt with by the legal and judicial framework, and that in the future it would be able to provide those statistics to the Committee.
The delegation said they noted the Committee’s concerns about the need for criminal offences to cover violent acts against any individual because of their ethnicity. Currently the police force did not maintain statistics in relation to crimes on racial discrimination or human rights violations committed in Fiji. In the last six years an average of 18,000 crimes were committed annually with a police detection rate of around 50 per cent. The current position in Fiji was that a crime was a crime regardless of the reasons or motivations, although Fiji would consider recording such crimes in the future. It would certainly be able to provide statistics on specific racially-motivated crimes, such as desecration of places of worship, in future reports.
Turning to poverty levels among ethnic groups, a delegate said that statistics based on a 2008 to 2009 Household Incomes and Expenditure Survey showed Fiji’s poverty line to be around 175 Fijian dollars per week for a household of four adults, which was the average family size. The poverty rate for i-Taukei was 31 per cent, for Fijians of Indian descent 32 per cent, and for Fijians of other ethnic groups 25 per cent. Ethnic minority communities had the highest incidence of poverty in rural areas at about 50 per cent. In urban areas, Fijians of Indian origin had the highest incidence of poverty at 21 per cent, compared to 17 per cent of i-Taukei and 16 per cent of other ethnic groups.
Regarding the media, a delegate said that while media organizations were free to report and comment on all matters of public interest, they were obligated, under the Media Industry Development Decree, not to publish or broadcast material in a form likely to promote or encourage communal hatred or discord. Under the Media Code of Ethics and Practice, media organizations must avoid discriminatory or denigrating references to people’s gender, ethnicity, colour, religion, sexual orientation or preference, physical or mental disability or illness, or age. Any individual who felt any media organization had breached those standards may lodge a complaint with the Media Tribunal, which would investigate and conduct a hearing into any allegation. Fines could be imposed of up to $1,000 for a reporter and $100,000 for a media organization.
Fiji’s relationships with neighbouring countries, including New Zealand and Australia and other Pacific island countries, had immensely improved in the last few years. Fijian law regarding statelessness was consistent with international human rights principles: the Citizenship Decree 2009 provided that all those born in Fiji were Fijians, including those with paternity links to Fiji, and that was applicable to all races.
The land tenure of Fijian lands was divided into freehold (ownership of entire pieces of land), leasing, and i-Taukei lands. Currently, when the State intended to use a particular piece of land it may either buy the land or obtain it through its compulsory acquisition powers. To do that the State must first consult with land-owners, and then compensate them for losses sustained. All i-Taukei land-owning units were required to formally consent prior to their lands being used. The Fijian Government had never forced any native land-owners to leave their lands and give them up. When native lands that could be leased were left idle it was the Fijian Government’s requirement to identify, consult and strategize avenues to enable proper usage of those lands with premium returns to land-owners. That policy had resulted in better utilization of lands by other races, thereby fulfilling the Convention’s requirement for use and ownership of lands by all. There had been circumstances where parties disputed over the ownership of the leases and the right for renewal; depending on the type of leases, adjudicating bodies were convened to determine such disputes.
In answer to a question about the rights of i-Taukei to ocean resources, a delegate said the i-Taukei Lands and Fisheries Commission, established in 1880, was the custodian of various registers in compliance with regulations covered under the i-Taukei Lands Act and Fisheries Act, and registered ownership of i-Taukei lands and customary fishing rights.
To clarify, consultations on the formulation of a new Constitution were currently taking place, a delegate explained. The Constitution was to be debated by the National Constituent Assembly, which included members of the Government, registered political parties, faith-based organizations, representatives of youth, women, employers, trade unions, farmers, business owners and people with disabilities, as well as civil society representatives.
Follow-Up Questions by Experts
Could the delegation shed some light on the reforms undertaken in Fiji to ensure electoral proceedings were democratic, an Expert asked, for example had an Electoral Code been put in place, and what were the criteria for a person to vote, or to stand for election? Could the Committee hear more about the various languages of Fiji, especially how they were taught in schools and universities? What about the definition of ‘indigenous peoples’?
The media law was extremely broad and could in fact be used against ethnic minorities who sought to assert their rights, an Expert commented. There was a potential concern about the statute being overly broad from the aspect of Article 4 and potentially disadvantaging minorities.
More information on land ownership disputes that had gone to court would be welcomed, an Expert said, asking what verdicts courts had passed down in such cases and what impact the cases had had, with a particular emphasis on the human right to land.
Response by the Delegation
There had been a number of submissions made by the Government of Fiji on the application of the definition of the terms ‘indigenous peoples’. The Government understood it to provide for indigenous peoples who were a minority group in their countries, but the indigenous i-Taukei population actually formed the majority of the population and had a higher standard of living than ethnic minorities in Fiji. The Fijian Government took the view that the interpretation of indigenous peoples should not apply to a dominant people who had the higher standard of living.
English was used as the common language in schools, but the i-Taukei, Hindi and Fijian languages were also taught from the age of seven years, as well as Rotuman, the language of a minority that lived in the north of the territory. The i-Taukei language only had one language, which was divided into different dialects. It was conversed and read only in one linguistic form.
A separate adjudicating body made decisions on land ownership disputes, a delegate said, while the principles of natural justice and common law also applied. The reason for that was because the legal decisions had to be in line with traditional laws and customary practices.
ALEXEI AVTONOMOV, Committee Chairperson, noted that the State party did not currently have a Constitution, but he appreciated that they did not use that as a pretext not to come to the Committee for their review, but he did look forward to Fiji’s next meeting with the Committee when it would be able go into the issues in more depth. Fiji respected its obligations under the Convention, even in a transitional period when it was difficult to prepare or present a report. The Chairperson said he particularly appreciated the delegation’s making the long and expensive journey to Geneva, particularly during a time of economic crisis.
WALIAKOYE SAIDOU, Committee Member acting as Country Rapporteur for the Report of Fiji, thanked the delegation and also the representatives of non-governmental organizations from Fiji who had also attended the meeting. Fiji’s barriers at an international level did not make implementation of the Convention easy, but there were many positive aspects of progress in Fiji. The Committee’s concluding observations and follow-up would hopefully help the State party progress. In the short term the Committee hoped to see democratic institutions established as a result of fair elections that were entirely free of discrimination on racial grounds.
PECELI VOCEA, Ambassador of Fiji to the European Union, said that Fiji’s next report would be based on a permanent Constitution that would perhaps answer the Committee’s questions more satisfactorily. The Committee should be assured that current developments in Fiji were leading to modern and democratic institutions. He thanked the Committee for their interesting questions which allowed the Government to reflect on appropriate policies and plans that would best implement the Convention.
For use of the information media; not an official record