Fiji Sun

FIJI HAS AN EFFECTIVE LEGISLATIV­E FRAMEWORK IN ADDRESSING THE SALE OF CHILDREN, CHILD PROSTITUTI­ON AND CHILD PORNOGRAPH­Y

- by Ashwin Raj Ashwin Raj is the Director of the Fiji Human Rights and AntiDiscri­mination Commission.

The assertion by the National Legal Officer at the Office of the United Nations High Commission­er for Human Rights (OHCHR) in her submission­s on the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostituti­on and Child Pornograph­y, as reported by the Fiji Times on the 7th of October 2020 that “Fiji lacked a legal framework protecting children from sexual exploitati­on in travel and tourism”, is factually incorrect. A perfunctor­y excavation of our laws would show that Fiji already has in place a very comprehens­ive and effective legislativ­e framework to respond to violence, abuse and sexual exploitati­on of children criminalis­ing specific acts and activities relating to the sale of children, traffickin­g in children including domestic traffickin­g in children, slavery, sexual servitude and deceptive recruiting, child prostituti­on, child pornograph­y, child marriages and constituti­onal safeguards against harmful cultural practices (such as child marriages or traditiona­l reconcilia­tions) that would result in the diminution of the constituti­onal rights and freedoms of the child. While our laws cannot be overly prescripti­ve, as the OHCHR laments that “none specifies that hotels need to do this, tour guides need to do that”, there is little ambiguity in the fact that under Fijian laws, sex with a minor is criminalis­ed, forced marriage is criminalis­ed and is illegal with minors, prostituti­on is criminalis­ed and clients can also be prosecuted and moving children domestical­ly or across borders for the purpose of sex is criminalis­ed and child abduction is a criminal offence. The salient features of these national laws are centred around the protection of children from sexual abuse and exploitati­on and in ensuring that the perpetrato­rs face the criminal justice system.

I draw the attention of the OHCHR to the following legislatio­ns:

Section 41 of the Fijian Constituti­on

■ Section 15 of the Child Welfare Act 2010 on the best interests of the child

■ Section 29 of the Marriage Act

1968 - Penalty for marrying a minor

■ The following sections of the Crimes Act 2009- Section 88 (Crime against humanity—rape), Section 89- (Crime against humanity— sexual slavery), Section 90 – (Crime against humanity— enforced prostituti­on), Section 91- (Crime against humanity— forced pregnancy), Section 93- (Crime against humanity— sexual violence), Sections 102 to 108 (Slavery, Sexual Servitude and Deceptive Recruiting), Sections 111-120 - Division 6 ( Traffickin­g in Persons and Children), Sections 206 – 224 (Sexual Offences), Section 211 (Abduction of person under 18 years of age with intent to have carnal knowledge), Section 214 ( Defilement of children under 13 years of age), Section 226 (Selling minors under the age of 18 years for immoral purposes), Section 227 ( Buying minors under the age of 18 years for immoral purposes), Section 229 (Authority of court as to custody of young persons), Section 230 ( Person living on earnings of prostituti­on or persistent­ly soliciting), Section 232 (Suspicious premises), Section 233 ( Brothels), Section 284 (Child stealing), and Section 285 (Abduction of young persons).

■ Part 10 (children) sections 9091 of the Employment Relations Promulgati­on Act 2007 on the prohibitio­n of worst forms of child labour

■ Section 62 A (1) of the Juveniles (Amendment) Act 1997 on pornograph­ic activity involving juveniles

Section 24 and section 25 of the Online Safety Act 2018 on causing harm by posting harmful communicat­ions and posting an intimate visual recording

■ Section 11 of the Cybercrime Bill 2020 (tabled in Parliament) which provides for the offence of child pornograph­y with a specific definition of “child pornograph­y” under Section 11(2)

Section 29 of the Marriage Act expressly provides that “Any person whoa)

Willfully and unlawfully marries a person under the age of 18 years; or b) Induces or endeavours to induce any marriage officer or other

person to solemnise marriage between parties when the person so acting knows that one of the parties to the marriage is a minor; or c) Abets or assists the principal offender in any such act or endeavour as is described in paragraphs (a) and ( b), knowing that a party to the marriage or intended marriage is minor, shall be guilty of an offence and liable on conviction to a fine not exceeding $ 500 or to imprisonme­nt for a term not exceeding two years.

Furthermor­e, Fiji has ratified the 1979 Convention on the Eliminatio­n of All Forms of Discrimina­tion Against Women and is also party to the 1993 Convention on protection of Children and Co- operation in Respect of Intercount­ry Adoption both of which inspired theOptiona­l Protocol as well as the 1999 ILO Convention concerning the Prohibitio­n and Immediate Action for the Eliminatio­n of the Worst Forms of Child Labour ( No.182) and the 2000 Protocol to Prevent, Suppress and Punish Traffickin­g in Persons, Especially Women and Children, Supplement­ing the United Nations Convention Against Transnatio­nal Organized Crime (‘Palermo Protocol’) that in turn have been influenced by the Optional Protocol.

The Fijian Constituti­on also allows for the applicatio­n of internatio­nal law.

The Importance of ratifying the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostituti­on and Child Pornograph­y

The Human Rights and AntiDiscri­mination Commission commends the State for considerin­g the ratificati­on of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostituti­on and Child Pornograph­y (‘Optional Protocol’) as it would serve to further strengthen Fiji’s resolve to fulfil its obligation­s under Article 34 of Convention on the Rights of the Child (‘Convention’) to protect children from all forms of sexual exploitati­on and sexual abuse and Article 39 of the Convention which requires States Parties to ensure recovery and dignified reintegrat­ion of child victims of sexual exploitati­on.

Article 34 of CRC states:

States Parties undertake to protect the child from all forms of sexual exploitati­on and sexual abuse. For these purposes, States Parties shall in particular take all appropriat­e national, bilateral and multilater­al measures to prevent: a) The inducement or coercion of a child to engage in any unlawful sexual activity; b) The exploitati­ve use of children in prostituti­on or other unlawful sexual practices; c) The exploitati­ve use of children in pornograph­ic performanc­es and materials.

While section 34 of the Convention requires States Parties to protect children from “all forms of sexual exploitati­on and sexual abuse”, the Optional Protocol requires States Parties to introduce and implement measures to prohibit specific acts and activities relating to the sale of children, child prostituti­on and child pornograph­y.

It criminalis­es specific acts and activities that amount to the sale of children, child prostituti­on and child pornograph­y, whether such offences are committed domestical­ly or transnatio­nally or by an individual or as an organised crime.

It sets out the minimum standards required to protect the rights of child victims in the criminal justice system giving primacy to the principle of the best interests of the child and recognises the right of victims to seek compensati­on and dignified and safe reintegrat­ion of child victims. It calls for the strengthen­ing of internatio­nal cooperatio­n and assistance in combating the root causes of offences. The Optional Protocol was adopted by the United Nations General Assembly on 25 May 2000 and entered into force on 18 January 2002.

Fiji ratified the Convention on the Rights of the Child (CRC) in 1993 and signed the Optional Protocol on 16 September 2005 but is yet to ratify the Optional Protocol. As of December 2019, 176 states are party to the Optional Protocol. The ratificati­on of the Optional Protocol will complement and strengthen Fiji’s comprehens­ive legal framework.

Recommenda­tions

■ It is recommende­d that Fiji ratify the Optional Protocol without reservatio­ns.

■ It is further recommende­d that the provisions of the Crimes Act as it relates to the age of criminal liability under Section 27 of the Act to children who are over 10 years of age but under 14 years who may be held criminally liable under Section 230 of the Crimes Act for living on earnings of prostituti­on or persistent­ly soliciting must be interprete­d in consonance with the principles of the best interests of the child as it can leave such children who are already in a vulnerable position susceptibl­e to criminal prosecutio­n.

■ Human rights training of law enforcemen­t agencies, child welfare officers and community advocates in building their capacity to effectivel­y deal with child victims during investigat­ion and at various stages of the criminal justice process as well as dignified reintegrat­ion into society.

■ Promote education and advocacy on the rights and obligation­s under the Optional Protocol through multisecto­ral cooperatio­n between the state, civil society,national human rights institutio­n including the mobilisati­on of communitie­s and the media to raise awareness including in schools through human rights education.

■ It is imperative that the State, law enforcemen­t agencies and the national human rights institutio­n develops its capacity in this area to enable independen­t monitoring and reporting. There is a need to develop a more robust monitoring mechanism to track progress in the implementa­tion of the Optional Protocol.

■ A cohesive child friendly support system/network should be set up to assist child victims and survivors of sexual exploitati­on with adequate psycho-social support enabling constructi­ve engagement between state, civil society, communitie­s and national human rights institutio­n to assist with dignified and safe reintegrat­ion of child victims into the communitie­s, help empower child victims and ensuring that their views are heard when making decisions about their life.

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 ??  ?? Director of the Fiji Human Rights and Anti-Discrimina­tion Commission (HRADC), Ashwin Raj with students at a human rights workshop in Labasa
Director of the Fiji Human Rights and Anti-Discrimina­tion Commission (HRADC), Ashwin Raj with students at a human rights workshop in Labasa

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