United Nations Committee on the Elimination of Racial Discrimination - States Parties Reports
of all Forms of
10 January 2007
COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
[20 June 2006]
Chapter Paragraphs Page
Introduction 1 - 4 4
I. RESPONSE TO THE CONCLUDING OBSERVATIONS BY
THE COMMITTEE ON THE ELIMINATION OF RACIAL
A. Item 12 5 - 24 4
B. Item 13 25 - 30 7
C. Item 14 31 - 34 8
D. Items 15 and 16 35 - 62 9
E. Item 17 63 - 72 18
F. Item 18 73 - 95 20
G. Items 19 and 20 96 - 152 24
H. Item 21 153 - 154 35
I. Item 22 155 - 172 36
J. Item 23 173 - 176 40
K. Item 24 177 - 187 42
L. Item 25 188 - 190 44
M. Item 26 191 - 210 45
N. Item 27 211 47
O. Item 28 212 47
P. Item 29 213 48
Q. Item 30 214 - 216 48
R. Item 31 217 - 219 48
S. Item 32 220 49
Chapter Paragraphs Page
II. INFORMATION RELATING TO SPECIFIC ARTICLES
OF THE CONVENTION 49
A. Article 1 221 - 225 49
B. Article 2 226 - 276 50
C. Article 3 277 - 281 60
D. Article 4 282 61
E. Article 5 283 - 360 61
F. Article 6 361 - 365 72
G. Article 7 366 - 407 73
List of annexes 81
1. In pursuance of Article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD], the present report by the Republic of the Fiji Islands [hereinafter “Fiji”] is submitted in accordance with the General Guidelines adopted in 1980 by the Committee on the Elimination of Racial Discrimination, as revised at its 984th meeting, on 19 March 1993.
2. The Government of Fiji [hereinafter “the Government”] submits its 16th and 17th periodic report on the legislative, judicial, administrative and other measures taken during the period from 2003 to 2006 in order to give effect to the Convention.
3. For the principal demographic, economic and social indicators and a description of its constitutional system (for Fiji’s Core Documents, see annex I of the present report).
4. This report consists of two parts: the first contains the responses to the concluding observations made by the Committee on 2 June 2003 (CERD/C/62/CO/3) and the second deals with the information relating to the different Articles of the Convention.
5. Fiji’s 1973 succession to the International Convention on the Elimination of All Forms of Racial Discrimination also expressly affirmed the reservations and declarations subject to which the Government of the United Kingdom had ratified that Convention on behalf of the then colony of Fiji.
6. Both as a matter of administrative policy and legislative enactments, the Government of Fiji has not derogated from any of the terms of succession reproduced above. In particular, it is likely that the reservations and declarations will continue to provide some protection as a condition of the succession for Fiji for the considerable future.
7. The Government of Fiji in maintaining its reservations justifies its position by examining the reasons these reservations were formulated by the Colonial Government while ratifying the Convention on behalf of Fiji.
8. Fiji’s policy thus far seems to either maintain these reservations or at least to not tamper with them.
9. The main provisions in the Convention to which reservations were entered by the colonial Government on behalf of Fiji are:
Article 5 (c) Political rights in particular the right to participate in elections to vote and to stand for election on the basis of universal and equal suffrage, to take part in Government as well as in the conduct of public affairs at any level and to have equal access to public service.
Article 5 (d) (v) The right to own property alone as well as in association with others.
Article 5 (e) (v) The right to education and training.
10. The latest study which addressed Fiji’s compliance with the Convention and the United Nations Draft Declaration on the Rights of Indigenous Peoples was conducted by the Fiji Constitution Review Commission and compiled in its comprehensive report “Towards a United Fiji” [Parliamentary Paper No. 34 of 1996.
11. The Commission prefaced its comments on this issue as follows:
Throughout this century the colonial government enunciated the principle that the interests of Fijians must always remain paramount. In part, the assertion of this principle reflected the genuine concern for the position of the indigenous Fijians in their country. In part it served the interests of the indigenous Fijians in their country. In part it served the interests of the colonizers especially in responding to Indo-Fijians pressure for elected representation on the Legislative Council. The principle that Fijian interests were paramount was widely accepted and became part of the political culture.
12. This principle was earlier reflected in colonial policy on the alienation of native land and later with the impetus for independence on the issue of suffrage.
13. The reservations entered by the colonial Government on behalf of Fiji while ratifying the Convention in the late 1960s are a manifestation of this principle. The results of the General Elections conducted after independence and the turbulent consequences showed that while there was wide acceptance of the principle there were differences in communal perception about its application.
14. Given the challenges Fiji has had to face in the decades after independence, the Government realizes and acknowledges the recommendations of the Committee to consider withdrawing its reservations.
15. The Government acknowledges the reservations to the Convention that were lodged on behalf of Fiji in the late 1960s. At that time international law on the ‘indigenous person’ had not evolved. Impetus for the development of this law gained momentum in the early 1980s, beginning with the work of the United Nations then Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1983.
16. Legal instruments which later evolved governing the rights of ‘indigenous persons’ include:
− World Conference on Human Rights [June 1992];
− United Nations Draft Declaration on the Rights of Indigenous Peoples [Regulation 1994/1995];
− ILO Convention [No. 169] Concerning Indigenous and Tribal Persons in Independent Countries, 1989.
17. The Government acknowledges that the law on indigenous persons has only evolved over the last 15 years and the Committee may be suggesting that Fiji’s concerns on indigenous rights issues could be addressed directly through these new international standards rather than indirectly by maintaining reservations in older treaties such as the Convention. The Government understands that by maintaining reservations to human rights conventions such as this one makes it difficult for parties like Fiji to comply fully with their reporting obligations.
18. Given that there is both international and domestic acceptance of the legal rights of indigenous persons, the Government is of the view that the Committee is not challenging Fiji’s right to maintain these reservations, however; a justification that takes account of recent developments in human rights law and particularly indigenous rights law, given the nature of Fiji’s reservation.
19. It is necessary to place a reservation against Article 5[d][v] because of the concern that an unqualified application of this Article would allow Fijians to own and dispose of ‘native’ land unreservedly, contrary to the restrictions in the Native Land Act, Cap. 133 and the Native Land Trust Act, Cap. 134.
20. The concerns that lay behind this reservation may now be assuaged by the recognition provided in international instruments such as the ILO Convention No. 169 and the Draft Declaration on the Rights of Indigenous Peoples that the rights of an indigenous people may need to be protected by restricting the right to dispose of their land [in their best interest]. Fiji’s Constitution was formulated to comply with the Draft Declaration, even though this instrument has yet to come into force. The domestic legislation that enforces this restriction, such as the Native Land Trust Act, is not only consistent with the Draft Declaration but also always consistent with the Convention.
21. The Government’s commitment to the Convention in the fulfilment of its obligations is shown in the appointment of the Parliamentary Standing Committee on Human Rights and Equal Opportunities. This was a landmark consensus-based decision between the two major political parties in Fiji. Amongst other things, the Committee is specifically tasked to review the concerns and recommendations of the Committee for the Elimination of Racial Discrimination, including the reservations relating to the Fiji Government under the Articles of the Convention.
22. The Prime Minister’s motion for the establishment of a 9-member Parliamentary Standing Committee was unanimously supported by the members of the Opposition members in Parliament when tabled during a Lower House seating on 30 September 2004. The relevant Hansard Report recorded the following:
... the Committee to compromise all political parties including independent members of the House, not aligned to a political party to examine the United Nations CERD Report relating to human rights and race relations and Human Rights Commission and any other report which deals with issues of human rights, equal opportunities and race relations tabled in the House, and to regularly report to the House with appropriate recommendations as and where necessary. (Uncorrected Copy, 30 September 2004; p. 3773).
23. The appointment of the Standing Committee on Human Rights and Equal Opportunities reinforces the commitment of the two political leaders to the underlying objectives of “Talanoa” (dialogue) that began in late 2000.
24. The establishment of a Sub-committee within the Talanoa Committee comprising members from both the Government and the Opposition Party symbolizes the high level of commitment to the spirit of unity, trust and mutual understanding in an effort to resolve critical issues of importance to nation building which both leaders agreed needed to be dealt with urgently through bipartisan dialogue.
25. Political instability and insecurity have been features of Fiji’s recent history. The two coups in 1987 and the one in May 2000 severely eroded public confidence and caused major disruptions to the economy. The Government took prompt action in 2000 to stabilize the economy and return the country to normalcy. It offered assistance to affected businesses via the rehabilitation packages through the Fiji Development Bank and gave financial assistance to those affected, especially the refugees. Reinstatement of the abrogated 1997 Constitution and Fiji’s return to democratic government were major steps in restoring public confidence.
26. The Government has implemented various measures to restore security and stability to the country. Its policy objectives are intended to help build national unity, national cohesion and a sense of national purpose. The elected Government does not in any way whatsoever politicize culture, identity and ethnicity in order to maintain indigenous Fijian hegemony. Nor do its policies encourage the promotion of such perceptions.
27. Achieving peace and security in Fiji’s multi-racial communities is a long-term commitment that the Government feels must be vigorously pursued through building understanding as well as through recognizing and appreciating the different communities’ contributions in nation building.
28. It is a top priority of the Government to ensure that all Fiji citizens can exercise their fundamental rights and freedom, and confidently participate in nation building. All citizens of Fiji are guaranteed their political and social rights through various interlinked and mutually supportive policies, strategies and programmes that have been put in place by the Government.
29. The Government is mindful of the pressing issues and concerns pertinent to the country’s politics of ethnicity. Arising from the Talanoa sessions, the Government had made a firm commitment to the collective effort of the two major political parties in identifying crucial issues that needed to be addressed for the peaceful coexistence of all ethnic groups in Fiji.
30. At executive and parliamentary level, the following actions has been taken:
− Establishment of the Ad Hoc Select Committee on Land - which is responsible for searching for an amicable and long-term solution to the future of agricultural leases on land, which must be just and fair to both the landowners and tenants;
− Establishment of the Standing Committee on Constitutional Review - which is responsible for deliberating on those Constitutional provisions that are controversial, to make amendments or alterations which are considered to be non-contentious and do not in any way impinge on the rights or interests of any individual or group or community;
− Establishment of the Standing Committee on Human Rights and Equal Opportunities - which is responsible for examining and considering reports dealing with human rights issues, such as the International Convention on the Elimination of All Forms of Racial Discrimination.
31. Judgment in the appeal concerning section 99 of the Constitution was delivered by the Supreme Court on 18 July 2003. The Court dismissed the appeal by the Prime Minister and held that the Fiji Labour Party has a legal entitlement under the Constitution to be represented in Cabinet in proportion to its numbers in the House of Representatives. The Government accepted this decision and the declarations made by the Court.
32. However, a dispute arose about the number of parliamentary members of the Fiji Labour Party that the Prime Minister is obliged to have appointed to the Cabinet. This dispute not having been resolved, the President referred to the Supreme Court, for its opinion, a number of questions on the proper interpretation of section 99 of the Constitution. In July 2004, the Supreme Court provided its opinion on the numerical entitlements of the two political parties in a multi-party Cabinet. Following this decision, the Fiji Labour Party decided not to participate in the multi-party Cabinet. Mr. Chaudhary also refused to be appointed the Leader of Opposition. Later the Fiji Labour Party decided to be part of the Opposition in the House of Representatives. The leader of the Fiji Labour Party had been appointed as the Leader of the Opposition pursuant to section 82 of the Constitution.
33. At the seating of the Lower House on 30 September 2004, the Prime Minister Hon. Laisenia Qarase successfully moved the motion on the establishment of the Standing Committee on Constitutional Review. In support, the Leader of the Fiji Labour Party commended the motion and also reaffirmed that the motion fully supported the agreements reached in the “Talanoa Talks” and that his party was willing to be part of the Standing Committee on the Constitutional Review and would:
deliberate on those amendments or alterations which are considered to be noncontentious and do not, in any way impinge on the rights or interests of any individual or group or community.
34. In dealing with the more substantive part of the review of the Constitution, the Standing Committee on the Constitutional Review would consider Terms of Reference (TOR) to focus more on constitutional provisions that are controversial, which among other things would include the following critical issues:
− The multi-party Cabinet provision under section 99 of the Constitution;
− Consideration of continuing the present provision for political parties to exercise the preferences of voters or of whether the exercise of preferences are best left to the individual voters to determine in accordance with their democratic rights.
35. The International Convention on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination specifically permit race-based distinctions to redress past discrimination and to promote the values of diversity.
36. By being a party to the Convention on the Elimination of All Forms of Racial Discrimination, Fiji has committed itself to take the affirmative steps necessary to ensure that equal enjoyment of rights is guaranteed to all racial groups and their individual members. More importantly, as a party to the Convention, Fiji expressly recognized that it permits race to be taken into account when necessary to secure equality.
37. The constitutional courts of states as diverse as Canada, India, South Africa and the United States, as well as the European Union, have all confronted challenges to affirmative action policies in recent years. They have examined the issue of affirmative action under their own laws and have upheld programmes benefiting minority populations who suffered discrimination. The courts have uniformly upheld such policies, including policies similar to those implemented and encouraged by the Government of Fiji, as consistent with their constitutional guarantees of equal protection.
38. Under international law, affirmative action is generally considered and adopted as “special measures” to advance the status or standard of living of socially and educationally backward sections of society. It is recognized as an important strategy for achieving equality. International standards qualify these principles only insofar as holding that affirmative programmes:
(a) Should not lead to the maintenance of separate rights for different racial groups;
(b) Must be discontinued once the programmes’ objectives have been achieved.
39. Parliamentary Paper No.66 of 2004 reports the implementation status of the Affirmative Action (AA) Programmes under the Social Justice Act of 2001 (see annex II to the present report). Fiji’s 2003 report to the Committee explicitly stated the legal basis of the Government’s commitment in effecting affirmative action programmes. The report also argues that the policy of the Government is in line with Articles 1(4) and 2(2) of the Convention and related State-funded programmes need to be implemented for the “sole purpose of securing the adequate advancement of the various ethnic groups and to ensure that they enjoy their human rights and freedoms”.
40. The tabling of the first consolidated “Progress Report on the Implementation of AA Programmes under the Social Justice Act (2003-2003)” (see annex III to the present report), in Parliament by the Prime Minister in 2004 fulfils the statutory requirement under Section 44(6) of the Constitution stipulating for each responsible Ministry/Department to monitor the progress of implementation relative to the means of assistance and performance indicators. Further the report aims to track how the means of assistance have addressed the needs of target groups or beneficiaries of the programmes and whether goals have been achieved in terms of equality.
41. Chapter 5, section 44 (Social Justice and Affirmative Action), of the 1997 Constitution supports equality of opportunity for all races and peoples of the Fiji Islands. It states:
(2) The Parliament must make provision for programmes designed to achieve for all groups or categories of persons who are disadvantaged effective equality access to:
(a) Education and training;
(b) Land and housing; and
(c) Participation in commerce and in all levels and branches of service of the State [emphasis added].
(3) A person may take special measures in accordance with this section for the purpose of achieving substantial equality between different groups or different categories of persons.
(4) A person does not discriminate against another person under Section 38 by taking those special measures.
42. The Social Justice Act was enacted by Parliament on 21 December 2001. The Act provides the legal framework for the implementation of the Affirmative Action Programmes of Government as required under section 44 of the Constitution.
43. The Act provides the following definition of affirmative action:
“Affirmative Action” means State policies to assist groups or categories of persons who are disadvantaged, so as to enable them to achieve equality of access with groups or categories who are not disadvantaged;
“Disadvantaged” in relation to a group or category of persons, means that the group or category does not have equality of access by virtue of the actual or supposed personal characteristics of the members of the group or category, or by virtue of the location or educational level of the category or group;
“Equality of access” means equality of access to education and training, to land and housing, to participation in commerce and participation in all levels and branches of service of the State”;
“Programme” means a programme of affirmative action specified in the
44. The main objective of the Government’s Affirmative Action Programmes, including the Blueprint and the 50/50 by 2020 Development Plan, is to allow for equality of access to opportunities by addressing the social and economic inequalities that were reflected in the 1997 United Nations Development Programme (UNDP) Fiji Poverty Report and the 1996 Census.
45. In 1996, Fiji’s population stood at 775,077, of which 403,302 were Fijians (52.0%), 338,818 Indians (43.7%) and 32,957 were from other ethnic communities (4, 25%). Approximately 54% of Fiji’s population resided in the rural regions while 46% lived in urban areas. The majority of Fiji’s rural population engages in subsistence and commercial farming.
46. Fiji’s rural population stood at 415,582, of which 57% were Fijians and Rotumans; 41% were Indians. Fiji’s urban population was 359,495 in 1996, comprising 46.5% indigenous Fijians and Rotumans; 46.7% Indians and 6.8% other ethnic communities. The figures clearly indicate that a majority of Fijians lived in rural areas, particularly in most remote places, where there is often difficulty of access to basic social services, including health, education, roads, water supplies, sanitation, electrification and so on. There are lower levels of incomes and standards in these areas.
47. The 1997 UNDP Report and the 1996 Census clearly outline social and economic inequalities. Table 1 highlights that the average weekly household incomes for Fijian households was 36% lower than that for the minorities, 20.3% lower than Indian households and 13% lower than the national average. Average per capita income for Fijian households was 43.5% lower than minorities, 20.3% lower than for the Indian community and 15.5% lower than the national average.
Average household income
Average per capita income
Source: 1997 Poverty Report.
48. Figure 1 below, derived from the 1996 Census, shows the percentage of each ethnic group’s participation in economic activity and distribution of the labour force. Almost 70% of the Indian community were engaged in the money economy, compared with 47% Fijians. Approximately 48% of Fijians were engaged in the subsistence sector and 5% who were members of the labour force were unemployed.
[*] This document contains the sixteenth and seventeenth periodic reports of Fiji, due on 10 February 2004 and 2006 submitted in one document. For the sixth to fifteenth periodic reports and the summary records of the meetings at which the Committee considered the report, see documents CERD/C/429/Add.1 and CERD/C/SR.1566-1567 and CERD/C/SR.1582.
[**] In accordance with the information transmitted to States parties regarding the processing of their reports, the present document was not formally edited before being sent to the United Nations translation services.
 Unemployed in Census terms means those who are economically active, are in the labour force, have some form of skills and training and are looking for work.