Summary of law reform necessary to achieve full prohibition

Prohibition is still t be achieved in the home, schools, penal system and alternative care settings.

Article 57 of the Juveniles Act (1974) confirms “the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him” and laws against violence and abuse are not interpreted as prohibiting all corporal punishment of children. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that no degree of corporal punishment is acceptable or lawful. Article 57 of the Juveniles Act should be repealed and all forms of corporal punishment explicitly prohibited, including by parents.

Explicit prohibition of corporal punishment in all schools, including public and private. The Penal Code should be amended to repeal all provisions for judicial corporal punishment, confirming the 2002 Supreme Court ruling. Explicit prohibition should also be enacted in legislation that is applicable to all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 57 of the Juveniles Act (1974) punishes cruelty to children but also confirms “the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him”.

Children have limited protection from violence and abuse under other provisions in the Juveniles Act, the Penal Code, the Family Law Act (2003, in force 2005), the Constitution (amended 1997) and the Fundamental Rights and Freedoms Decree (2000).

In 2006, the then Prime Minister and other high level offices endorsed a statement calling for an end to all corporal punishment, but as at May 2008 there have been no moves towards legal reform.

Schools

Corporal punishment is prohibited in schools under a High Court ruling which stated that corporal punishment was unconstitutional (Lautoka High Court, March 2002, Appeal Case Naushad Ali v State). The Education Act is silent on the issue, but article 57 of the Juveniles Act (see above) provides legal justification for the use of corporal punishment. Prior to the Supreme Court ruling the Permanent Secretary issued guidelines for its administration by heads/principals using a leather strap. As at December 2008, the prohibition had not been confirmed in legislation.

Penal system

Corporal punishment is unlawful as a sentence for crime under the 2002 High Court ruling (see above) but as at December 2008 the Penal Code is still to be amended to reflect this. Corporal punishment of persons under the age of 17 is prohibited in the Juveniles Act (article 32). In 2007, the Fiji Law Reform Commission recommended that no corporal punishment provision should be restated in the new Crimes Act.

Corporal punishment is unlawful as a disciplinary measure in penal institutions under the 2002 High Court ruling (see above). In 2006 legislation providing for corporal punishment (the Prisons Act and Prisons Regulations) was repealed by the Prisons and Corrections Act (2006) and corporal punishment explicitly prohibited (article 38). There is no provision for corporal punishment in sections 29-34 of the Juvenile Act.

Alternative care

Corporal punishment is lawful in alternative care settings under article 57 of the Juveniles Act (see above).

Prevalence research

Large scale comparative research into the views and experiences of 3,322 children and 1,000 adults in 8 countries in Southeast Asia and the Pacific (Cambodia, Fiji, Hong Kong, Indonesia, Mongolia, Philippines, Republic of Korea and Viet Nam) was carried out by Save the Children in 2005. The research in Fiji involved 536 children (244 boys, 292 girls) aged 10-17 years from urban, semi-urban and rural areas, and 101 adults (49 men and 52 women, teachers in the schools and members of four community settlements in the Central Division). The research team led 51 sessions with the children, boys and girls separately, and two age groups – 10-13 years and 14-17 years. Methods used included research diaries, drawings, body maps, attitude survey, sentence completion, and discussions. Most punishment experienced by children were direct assaults, more frequently for younger children, including being beaten, hit, slapped or lashed, smacked, whacked, given a hiding, spanked, punched, “donged” (on the head) and pinched. Nine out of ten boys aged 10-13 years and almost eight out of ten aged 14-17 years reported the use of physical punishments; 71% of girls in both age groups reported this. More punishment was administered by immediate family members (parents 48%) than by teachers (45%); for all girls and younger boys, most punishments were experienced in the home; for older boys the majority of punishment happened at school. Reasons for the punishment included disobedience, unsatisfactory academic performance and misbehaviour. In response to the statement “After I punish a child I feel unhappy”, 38% of adults disagreed, 57% agreed, and 5% had no opinion. (Save the Children, 2006, The Physical and Emotional Punishment of Children in Fiji: A research report, Suva, Save the Children Fiji. See also Beazley, H., S. Bessell, et al., 2006, What Children Say: Results of comparative research on the physical and emotional punishment of children in Southeast Asia and Pacific, 2005, Stockholm, Save the Children Sweden)

Interviews with parents and teachers conducted for Pacific Children’s Program by a team from the University of South Pacific found that corporal punishment of children is administered by parents, guardians and elders and takes many forms, including beating or using a belt or rod; hitting and punching the head with the hand or an object; inserting fingers down a child’s mouth until the child gags; tying a child up in a sack and hanging from a tree; and whipping with a stick or rope. (Vakoati, P. & Finekaso, G., 2002, Qualitative Study on Child Protection Practices: Fiji Report, University of South Pacific, Report prepared for International Development Support Services, Pacific Children’s Program)

A study by the Fiji Women’s Crisis Centre found that 80% of respondents had witnessed someone being beaten in the home, indicating a general acceptance of violence as a form of punishment. 57% of those described by respondents as victims of violence in the home were daughters and sons; 19.5% of those most frequently beaten were children; 81.2% of male respondents and 75.8% of female respondents reported being hit by their parents. (FWCC, 2001, The incidence, prevalence and nature of domestic violence and sexual assault in Fiji: a research project of the Fiji Women's Crisis Centre, Suva, Fiji Women's Crisis Centre. Cited in Save the Children, 2006, The Physical and Emotional Punishment of Children in Fiji: A research report, Suva, Save the Children Fiji)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While aware of the initiative presented by the CCC [Coordinating Committee on Children] to Fiji’s Law Reform Commission for the legal prohibition of the use of corporal punishment, the Committee remains concerned that corporal punishment is still used by parents and that internal school regulations do not contain explicit provisions prohibiting this harmful practice, in conformity with, inter alia, articles 3, 19 and 28 of the Convention.

“The Committee recommends that corporal punishment be comprehensively prohibited by law and that measures be taken to raise awareness on the negative effects of corporal punishment and to ensure that discipline in schools, families and institutional care is administered in a manner consistent with the child’s dignity, in light of article 28 of the Convention.”
(24 June 1998, CRC/C/15/Add.89, Concluding observations on initial report, paras. 16 and 36)