Lawfulness of corporal punishment

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Corporal punishment is lawful in the home. Article 57 of the Juveniles Act (1974) punishes cruelty to children but also states: “Nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him.” Article 235 of the Penal Code (1945) criminalises “excessive” force, stating: “Any person authorised by law or by the consent of the person injured by him to use force is criminally responsible for any excess, according to the nature and quality of the act which constitutes the excess.”

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) and the Constitution (amended 1997). Article 25 of the Constitution states: “Every person has the right to freedom from torture of any kind, whether physical, mental, or emotional and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.” This is reiterated in article 6 of the Fundamental Rights and Freedoms Decree (2000).

The Penal Code provisions on common assault and assault causing actual bodily harm state: “Common assault: Any person who unlawfully assaults another person is guilty of a misdemeanour, and if the assault is not committed in circumstances, for which a greater punishment is provided in this Code, is liable for imprisonment for one year. Assault causing actual bodily harm: Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment.”

As at January 2007, a domestic bill was under discussion and public requests for complete prohibition had been made.

Schools

Corporal punishment is prohibited in schools under a High Court ruling by Justice Jayant Prakash which stated that corporal punishment was unconstitutional (Lautoka High Court, March 2002, Appeal Case Naushad Ali v State). Acting Puisne Judge, Jayant Prakash, stated: “Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students.”

The Education Act does not make any specific provisions for corporal punishment in schools, but prior to the Supreme Court ruling the Permanent Secretary issued guidelines for its administration by heads/principals using a leather strap. The ruling has elicited strong opposition from the Fijian Teachers Association, the Great Council of Chiefs and the Methodist church, though the FTA has also stated that it does not condone corporal punishment and has encouraged its members to use other methods of discipline. In 2005, the Acting Chief Executive Officer of Education stated that the Ministry was working towards reintroducing corporal punishment in schools (Fiji Times, 17 January 2005, cited in  Save the Children Fiji, 2006, The Physical and Emotional Punishment of Children in Fiji: A research report). As at March 2007, the prohibition had not been confirmed in legislation and corporal punishment continues to be used in schools, although a Ministerial circular under the Education Act was issued to schools (Education Gazette Vol. II of Term 2 2005).

Penal system

Corporal punishment is unlawful as a sentence for crime under the 2002 High Court ruling (see above) but as at February 2008 the Penal Code was still to be amended to reflect this. Corporal punishment of persons under the age of 17 years is prohibited in the Juveniles Act (article 32). The Fiji Law Reform Commission has reviewed the Penal Code and, in its report presented to the government in February 2007, 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 (article 84 of the Prisons Act and articles 44 and 134-136 of the Prisons Regulations) was repealed by the Prisons and Corrections Act (2006), which states in article 38: “No prisoner may be subjected, by way of punishment, to: (a) corporal punishment in any form….” Article 3 (Guiding principles) states: “When interpreting or applying any provision of this Act, and when exercising any prescribed power or duty or function, all persons that: (a) ensure that full regard is had to the recognized international standards and obligations relating to the treatment of prisoners (and in particular those stated in the international Conventions recognized in section 43(2) of the Constitution and in The Standard Minimum Rules for the Treatment of Prisoners adopted at Geneva in 1955), and that these standards are applied to the fullest extent possible; (b) apply to the fullest extent possible the rights and obligations of CEDAW and CRC in the administration of Fiji’s prisons and the treatment of prisoners….”. Article 8 of the Fundamental Rights and Freedoms Decree states that arrested or detained persons have the right “to be treated with humanity and with respect for his or her inherent dignity”. There is no provision for corporal punishment in sections 29-34 of the Juvenile Act, dealing with juvenile offenders.

Alternative care

Corporal punishment is lawful in other institutions and forms of child care under article 57 of the Juveniles Act (see above). The provisions against violence and abuse in the Penal Code and the Family Law Act apply. The welfare of children in mental health facilities is covered by the Mental Treatment Act (1990).

Workplace

Article 33(3) of the Constitution (1997) states: “[E]very person has the right to fair labour practices, including humane treatment and proper working conditions.”

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)