This is Attorney-General Aiyaz Sayed-Khaiyum’s response to an overseas now government organistaion report ranking Fiji 116th out of 197 countries on how effectively children can defend their rights in court

The Fijian Government notes that, in the preparation and publication of this report on access to justice for children, no consultations were undertaken by the writers of the report with the relevant agencies such as the Judicial Department (including the Chief Justice or the Family Court), the Ministry of Women, Children and Poverty Alleviation, the Legal Aid Commission and the Ministry of Justice.

Furthermore, we are unaware of the processes that were involved in the compilation of the report and the methodology that was used. Given the above, the report fails to provide an accurate picture of access to justice for children.

We also note that the report was prepared in early 2014, which is almost two years out of date. Indeed, if the writers of the report had undertaken the necessary consultations, they would have been able to update themselves on the significant progress that Fiji has made in provides greater access to justice to children, and indeed to all Fijians, which is indeed much better than many other countries which have been ranked ahead of Fiji.

The Fijian Government does not give much heed to such unilateral and factually incorrect reporting. The report does not provide an accurate picture of the human rights landscape in Fiji, in particular in relation to the rights and protections offered to children.

Our human rights laws have been assessed in line with international best practices and standards by the relevant UN agencies, including in particular the UN Human Rights Council.

In this regard, Fiji has submitted its country reports with regards to the Convention on the Rights of the Child in 2012 and the Universal Periodic Review in 2014 which have been very well received by the Human Rights Council and the international community as a whole.

The Fijian Government ratified the Convention on the Rights of the Child (“CRC”) in 1993. We have since ratification enacted a number of laws that are in line with our obligations under the CRC in order to provide children with various rights and to provide adequate and necessary protection to children.

Constitution of the Republic of Fiji (“Constitution”)

The Constitution provides various protection mechanisms for the rights of children. The definition of a child under the Constitution is any person under the age of 18.

Section 13 of the Constitution provides rights of arrested and detained persons. One of the rights under this section pertaining to children is that in the case of children who are arrested or detained children have the right to be kept separate from adults, unless that is not in the best interests of the child.

Section 15 of the Constitution provides for the access to courts or tribunals. Under section 15 the hearings of courts and tribunals are open to the public, however it also provides that closed courts may be used for trials relating to children. Section 15 also enables the exclusion of a person from court proceedings in the interest of justice, public morality, the welfare of children, personal privacy, national security, public safety or public order.  Section 15 also provides that if a child is called as witness in criminal proceedings, arrangements for the taking of the child’s evidence must have due regard to the child’s age.

Section 41 of the Constitution extensively provides for the rights of children. Under section 41 all children have the right to be protected inter alia from abuse, neglect, harmful cultural practices, any form of violence, inhumane treatment. Moreover children cannot be detained except as a measure of last resort and when detained only to be held for the period as necessary and separate from adults and in conditions that take account of the child’s sex and age. The Constitution mandates that best interests of the child are the primary consideration in every matter concerning the child.

It is prudent to note that under the Bill of Rights Chapter in the Constitution, section 7 provides that in the interpretation and application of rights under this Chapter, courts and tribunals may, if relevant consider international law, applicable to the protection of rights and freedoms in this Chapter. Therefore, section 7, empowers judicial officers to take into consideration international laws, covenants and treaties which Fiji is a party to when deciding on cases pertaining to the various rights and freedoms guaranteed to individuals (including children) under the Bill of Rights. Domestic law and its interpretation is not looked at or interpreted in isolation, but where relevant, domestic law is also looked in line with international law.

Child Welfare Decree 2010

The Child Welfare Decree 2010 ensures the 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 so as to protect the confidentiality and integrity of such cases.

Criminal Procedure Decree 2009

The Criminal Procedure Decree in section 295 allows prosecutors before the commencement of a trial to make an application before a judge or magistrate for directions as to procedures whereon trial evidence of vulnerable witnesses. The judge or magistrate may call for and receive relevant reports from persons who the judge or magistrate considers to be qualified to render advice on the effect of such witnesses giving evidence and its effect on such witnesses. . Hence in order to protect the safety and welfare of vulnerable witnesses, a judge or magistrate may allow the witness to give evidence at trial in some of the following ways:

1. a) through videotape;
2. b) vulnerable witnesses may give evidence outside the courtroom from a suitable location, with the evidence being transmitted to the courtroom by means of closed circuit television or such similar quality secure audio visual electronic means;
3. c) have a screen or one way glass, be placed so that the witness cannot see the accused but the judge or magistrate and counsel for the accused can see the person;
4. d) that the vulnerable witness be places behind a wall or partition constructed in such a manner so as to enable those in the courtroom to see the vulnerable witness while preventing the witness from seeing those in the courtroom; and/or
5. e) that evidence be given only in the presence of the judge or magistrate, counsels, the accused and any other such person the judge or magistrate finds suitable.

Child Protection Division (Office of the Director of Public Prosecutions)

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.

The Child Protection Guidelines of 2009 set out the operations of the CPD, for instance, the steps taken in building rapport with the child victim, the decision on whether to oppose bail for the accused and considerations relating to pre-trial applications such as 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.

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. The CPD also helps explain Fijian criminal justice system to victims and witnesses and their families to help them better understand the judicial processes. The team also ensures that child victim’s parents or guardians are kept well informed of developments in the case of their child. Witness Conferencing is also conducted with victims and witnesses to help familiarise them with court proceedings and procedure.

Ministry of Employment, Productivity and Industrial Relations 

The Ministry of Employment, Productivity and Industrial Relations (“Ministry”) has trained a number of labour inspectors and officers in investigating and conducting inspections in the area of child labour. The Child Labour Unit in the Ministry has also visited over 190 schools around Fiji and has trained over 300 teachers on the prevention of child abuse and child labour. The Unit has also gazetted a hazardous workplace list which came into effect on 28th May 2013. The Unit has also established and trained the Districts Inter-Agency Committee at a grass roots level in providing reports of child labour and child abuse.

Legal Aid Commission

The Legal Aid Commission (“Commission”) is a Statutory Body established under the Legal Aid Act 1996 and is mandated to provide legal assistance to impoverished persons. The Constitution further imposes a constitutional obligation on the Commission to render free legal assistance to those members of the public who cannot afford the services of a legal practitioner.

Since its establishment, the Commission has formulated policies and guidelines whereby services have been provided and extended to children.

Under Criminal justice system, Juvenile representation is an area of priority for the Commission and is one way in which children have access to justice. Young offenders or children who are charged for offences have the services of a free legal practitioner through the Commission.

These young offenders have access to legal aid services by applying formally to the Commission, or alternatively, the Commission also has a scheme which is called the Duty Solicitor Scheme. Under this scheme, the young offender does not have to formally apply, but rather a lawyer will be made available in Court to appear for the child as a “one-off” assistance, however, thereafter, an application has to be made by the child for any further assistance.

There is also a separate Juvenile Court which determines all matters in respect of Juveniles. So even if the juvenile is not aware of his/her rights to access to a lawyer, the Court will direct that the Commission assist the juvenile.

Therefore, the network between the Judicial system and the Commission enables children, and in this case, juveniles, have access to justice.

So far, the Commission has assisted the following number of Juveniles from 2010-2015:

Furthermore, apart from assisting children in Criminal matters, the Commission also assists children through the Family court and in civil matters, in particular, estate matters.

The Commission has on occasions appeared as Child Representatives in family law matters where there is a dispute between parents as to who should have residence or access to the child. The Family Law Act 2003 allows for the appointment of an independent Child Representative (lawyer) in which the Child Rep has the responsibility of representing the child, and not the parent(s). The purpose of this is to ensure that the interests of the child remains the paramount consideration and the job of the Child Rep is to ensure this by acting independently and in the best interests of the child.

In respect of estate matters, the Commission has also assisted children through the next of kin by taking out a Letters of Administration (Limited Grant) where the child’s parents are deceased. This is where the child is a minor and is not able to take out the grant him/herself. The child only gets/inherits the estate of the deceased parents once he/she reaches the age of 21.

The Legal Aid Commission will be receiving funding from the European Union under the EU’s Access to Justice Program for the next 5 years. The total allocation for this program is €7.5 million which will be divided amongst other institutions including the Judiciary.

The Commission is a central point of focus under this program and the access to justice component of the EU funding together with other stakeholders will be targeted towards the poor and most vulnerable members of the society, that is, mainly women and children.

Conclusion

The Fijian Government is committed to ensuring that the rights of all Fijian Children are protected. Various legislative and policy mechanisms have been enacted in order to holistically protect the rights of a child and provide children with access to justice in a safe and protective environment.

Judicial system

With regards to the Judicial System, the Convention on the Rights of the Child is respected and often implemented in decision making.

The training of judges and Magistrates covers not only gender and stereotyping issues but also sexual offences against children and the relevant concerns in such trials and in sentencing.

A recent training for judicial officers in this regard took place on 28-29 January 2016.

The Judiciary has also the provisions of a crèche at Government Buildings for mothers and for children, and for those who can give evidence by CCTV.

This is a facility that will spread to some of the other court houses in the country including new courts which will be built during the course of the year.

The Judiciary has also sought expert assistance on child matters from UNICEF – to help with bench books, special training of judges and magistrates in this field, and the provision of screens in court to protect traumatised children when giving evidence.

However assistance for these measures has been declined on the basis that their sponsors in Canberra, DFAT, did not wish to assist. Instead these programmes of improvement now will be undertaken by the Judiciary itself and other sponsors.