FOCUS December 2001 Volume 26

The Fiji Human Rights Commission

Shameem Shaista

The Fiji Human Rights Commission is a constitutional office established under Section 42 of the 1997 Constitution of the Republic of Fiji. Its enabling legislation is the Human Rights Commission Act 1999 (HRC Act).

When the Constitutional Review Committee was drafting the 1997 Constitution, it recognized the need for Fiji to have a Human Rights Commission. The initial role envisaged for it is to educate the public about the Bill of Rights, its contents and its origins in International Law and how these rights are protected under the Constitution. It also recommended that the Commission's jurisdiction be not confined to the State and statutory bodies, but extend to private individuals and companies. These recommendations resulted in section 42 of the Constitution and the HRC ACT.

Role of the Commission

The primary role of the Fiji Human Rights Commission is to promote and provide better protection of human rights to all persons in Fiji Islands in accordance with the "Paris Principles" and the relevant law on human rights, in our case, the Constitution and HRC Act.

The Commission comprises three members. The Ombudsman is the Chairperson with two part-time Commissioners.

The Commission has a full-time Director who oversees its effective operation with the support of eleven staff members.

Their responsibility is to ensure that the state, and in certain circumstances the public, adhere to human rights law protected by the Constitution and the HRC Act.

Functions of the Commission

In accordance with the Constitution and the HRC Act, the Commission's functions are as follows:

1. To educate the public about the nature and content of the Bill of Rights, including its origins in international conventions and other international instruments, and the responsibilities of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and other organs of the General Assembly of the United Nations for promoting respect for human rights;
2. To make recommendations to the Government about matters affecting compliance with human rights, including the making of a recommendation that a particular question about the legal effect of a provision of the Bill of Rights be referred to the Supreme Court for its opinion; and
3. To perform such other functions as are conferred on it by law.

At its inception in 1999, the Commission initially concentrated on its education function - publishing pamphlets and conducting workshops and training for trainers and human rights activists as well as the police and prison authorities.

In the aftermath of the events of May 2000, the Commission has now concentrated on its function of investigating allegations of human rights violations and breaches of the Bill of Rights by the police, military and prison authorities during the State of Emergency. On the same token, the Commission is continuing its promotion and educational function.

Powers and Duties of the Commission

Under Section 7 (1) of the HRC Act 1999 the Commission has a number of powers and duties, for example to:

1. Increase general awareness of human rights, including issuance of public statements and educating public opinion and public ficials, coordinating human rights programs and acting as a source of human rights information.
2. Invite and receive representations from members of the public on any matter affecting human rights.
3. Consult and co-operate with other persons and bodies concerned with the promotion and protection of human rights.
4. Inquire generally into any matter, including any enactment or law, or any procedure or practice whether government or non-governmental, if it appears to the Commission that human rights are, or may be, infringed thereby.
5. Recommend to the government the desirability of legislative, administrative or other action to better protect human rights.
6. Promote better compliance in the Fiji Islands with standards laid down in international instruments on human rights.
7. Encourage the ratification of international human rights instruments by the State and, where appropriate, recommend the withdrawal of reservations entered on those instruments.
8. Advise the government on its reporting obligation under international human rights instruments and, without derogating from the primacy of the government's responsibility for preparing those reports, to advise on the content of the reports.
9. Make recommendation on the implications of any proposed Act or regulation or any proposed policy of the government that may affect human rights.
10. Investigate allegations of violations of human rights and allegations of unfair discrimination, on its own motion or on complaint by individuals, groups or institutions on their own behalf or on behalf of others.
11. Resolve complaints by conciliation and refer unresolved complaints to the courts for decision.
12. Advise on any human rights matter referred to it by the government, having regard to the available resources and priorities of the Commission.
13. Publish guidelines for the avoidance of acts or practices that may be inconsistent with or contrary to human rights.
14. Take part in international meetings and other activities on human rights and co-operate with other national, regional and international human rights bodies.

The powers and functions as outlined above can be best summarized by the service which the Commission provides to three main sectors; the State, the people in Fiji (this includes non-citizens residing in Fiji); our international human rights partners and the United Nations.

The Commission's obligation to the State is to be its advisor on matters pertaining to human rights as well as to keep the State updated on its obligations under the various treaty bodies to which Fiji is a member. The Commission also provides legal opinions to the State on the human rights aspects of any proposed Bill or policy to be implemented, and also provides guidelines on minimum standards as regards human rights.

The Commission's obligation to the general public is to promote and protect human rights as well as to investigate allegations of abuses of human rights; and in the appropriate cases take matters up to the High Court for judicial interpretation and intervention. The Commission also has the function of acting in partnership with civil society in promoting and protecting human rights.

The Commission also has the obligation of keeping Fiji linked to the various treaty bodies to which Fiji is a party and to also write shadow reports to these bodies if it is not satisfied with the country report submitted by the State. The Commission is also obliged to attend international meetings and conventions to keep abreast of developments in international human rights law.

The Courts and the Commission

The Commission, by legislation, acts as a filter in the judicial process by investigating allegations of human rights violations and discrimination, and attempts to resolve these complaints by conciliation. Courts are used as a forum only when complaints remain unresolved.

The Complaints Resolution Process

Complaints reach the Commission through people calling in personally, over the telephone or by mail. A complainant has to fill up a questionnaire that will be used to determine whether or not the complaint relates to the Bill of Rights. Most complaints are out of jurisdiction because they do not pertain to the Bill of Rights. They may be contractual issues, matters already in the Courts or complaints more appropriate for another, better equipped government department to resolve successfully.

An Investigation Team assesses the complaint to determine whether the complaint is within jurisdiction, and whether or not to investigate it. Once the investigation is completed, the two parties are invited for conciliation talks in an attempt to reach an amicable solution. Only if the conciliation attempt fails will the matter be taken to court.

Roughly half of the initial inquiries made to the Commission are out of jurisdiction, mostly family court matters, delays in having a matter tried by the courts, and contractual matters.

Conversely, of the complaints that are within jurisdiction, a significant number relate to unfair labor practices (such as unfair dismissal, unsafe working conditions, and unconscionable working conditions and terms of employment). This situation is a direct consequence of the political events of the May 2000 attempted coups with garment factories either closing or restructuring, and the workers bearing the brunt of the cost-cutting measures. Another direct result of the events of May 2000 are the complaints of excessive and extra-judicial use of force, brutality and arbitrary detention by the police, military and prison services.

The following tables illustrate the type of complaints received by the Commission in 2000.

Basis of the 15 Unfair Discrimination Complaints

Race	7 (46%)
Gender	5 (33%)
Personal characteristics	1 (7%)
Religion	1 (7%)
Sexual harassment	1 (7%)
Total	15

 

Areas of 15 Unfair Discrimination Complaints

Employment	13 (86%)
Professional accreditation	1 (7%)
Public access	1 (7%)
Total	15

 

Status of 117 Complaints

Undergoing investigation	58 (49%)
Police complaints awaiting police investigation	29 (25%)
Prisons complaints awaiting internal investigation	13 (11%)
Conciliation	10 (9%)
Resolved	7 (6%)
Total	117

 

117 Valid Complaints

Bill of rights	102 (87%)
Unfair discrimination	15 (13%)
Total	117

 

The Commission during the 2000-2001 period

The attempted coups of 2000 and the declaration of a state of emergency by the Army gravely affected the work of the Commission. There were budget cuts and security issues that the Commission had to face. At the same time, complaints from the public on human rights violations continued to be lodged with the Commission, which barely managed to deal effectively with all the human rights violations occurring in the country.

However, the Commission is now slowly re-emerging as a very important institution in the protection and promotion of human rights in Fiji. To date the Commission is dealing with three hundred fifty complaints (Fiji's population is approximately 750,000), and promoting human rights through the publications section of the Commission.

At the same time, the Commission is severely constrained by limitations of human resources and at present most of the complaints and investigative work is limited to the main urban and peri-urban centers in the main islands. There is only one office in Suva although there are plans to diversify and open offices throughout the major centers in order to reach the people directly.

Conclusion

The Commission is regarded in Fiji as a very important national institution for the protection and promotion of human rights. Despite the limitations of resources, the Commission has been able to provide a vital service at a time when it was most needed. In the aftermath of the events of May 2000, the provisions of the Bill of Rights could so easily have been brushed aside, but as a result of the promotional work of the Commission, people are more aware of their rights and there is a growing human rights consciousness that bodes well for the future.

The Commission's close association with the Asia-Pacific Forum for National Human Rights Institutions assists it in keeping in mind international human rights law as well as fosters the type of human rights practice in Fiji that is specific to our own special circumstances as a Pacific Island State with a unique multi-ethnic culture.

Dr. Shameem Shaista is the Director of the Commission.

For further information please contact the Fiji Human Rights Commission Level 2, Civic Towers, Victoria Parade, SUVA, Fiji, Phone: (679) 308577; Fax (679) 308661; e-mail: info@humanrights.org.fj mailto:info@humanrights.org.fj Website: www.humanrights.org.fj

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