Fiji: Treatment of homosexuals by society and government authorities; recourse and protection available to homosexuals who have been subject to ill treatment (2005 - March 2007)
|Publisher||Canada: Immigration and Refugee Board of Canada|
|Author||Research Directorate, Immigration and Refugee Board of Canada, Ottawa|
|Publication Date||2 April 2007|
|Citation / Document Symbol||FJI102479.E|
|Cite as||Canada: Immigration and Refugee Board of Canada, Fiji: Treatment of homosexuals by society and government authorities; recourse and protection available to homosexuals who have been subject to ill treatment (2005 - March 2007), 2 April 2007, FJI102479.E, available at: http://www.refworld.org/docid/469cd69b44.html [accessed 28 November 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Fiji's 1997 constitution bans discrimination on the basis of sexual orientation (Fiji 25 July 1997; HRW 12 Apr. 2004). In particular, Section 38 (2) of the Bill of Rights reads as follows:
2) A person must not be unfairly discriminated against, directly or indirectly on the ground of his or her:
a) actual or supposed personal characteristics or circumstances including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability. (Fiji 25 July 1997)
The Sexual Minorities Project (SMP), formerly a part of the non-governmental organization Women's Action for Change, is now Fiji's only organization for lesbian, gay, bisexual and transgendered people (Astraea Lesbian Foundation for Justice 2006, p. 22). According to an article written by an SMP representative in 2000, the government of the day attempted to remove reference to sexual orientation from Section 38 (2) (ILGA 15 Mar. 2004). Human Rights Watch (HRW) reports that in 1999 and 2000, the Methodist Church pressured the government to remove the sexual orientation article from the constitution (HRW 12 Apr. 2004). Nonetheless, the SMP coordinator states the "clause is safe for now" because of pressure from non-governmental organizations within Fiji and abroad as well as from individuals (ILGA 15 Mar. 2004).
That said, Fiji's Penal Code criminalizes homosexual acts between two males (HRW 12 Apr. 2004; ILGA Oct. 2005; see also Gay Times n.d.). In particular, Section 175 of the Penal Code states:
Any person who -
is guilty of a felony, and is liable to imprisonment for fourteen years, with or without corporal punishment. (Fiji 1 May 1945)
In addition, Section 177 states:
Any male person, who whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission any such act by any male person with himself or another male person, whether in public or private, is guilty of a felony, and is liable to imprisonment of five years with or without corporal punishment. (ibid.)
There are no laws prohibiting sexual acts between women, according to an article written by the coordinator of the Pacific Council of AIDS Service Organizations, who also serves on the management collective of the SMP (Isis n.d.; see also Diva n.d.).
In April 2004. two men were sentenced to two years in prison for homosexual conduct (AI 23 May 2006; HRW 12 Apr. 2004; Isis n.d.) as well as for taking nude photographs of each other (ibid.; HRW 12 Apr. 2004; Fiji Human Rights Commission 1 Sept. 2005). The judge reportedly said he found the men's sexual behaviour to be, "... so disgusting that it would make any decent person vomit" (Isis n.d.; HRW 12 Apr. 2004; ILGA 26 Aug. 2005; see also Gay Times n.d.). Prime Minister Laisenia Qarase reportedly commented on the men's conviction by saying that homosexuality is a biblical sin and Fiji's laws reflect that perspective (SMH 13 Apr. 2005). The conviction also led to increased violence against gay men, according to Gay.com (24 June 2005). According to Gay.com many gay men were afraid of reporting violence to the police because of the possibility of "revenge attacks" (24 June 2005). Homophobia in Fiji is "commonplace" and the country has "a very strong anti-gay religious movement," according to an interview with a legal officer from the International Centre for the Legal Protection of Human Rights (INTERIGHTS) published in a document produced by the International Lesbian and Gay Association (ILGA) (ILGA Oct. 2005). INTERIGHTS is a United Kingdom (UK) registered charity that aims to enforce human rights through law (INTERIGHTS n.d.).
Various sources report that the convicted men successfully appealed their case and were acquitted (AFP 30 May 2006; Gay Times n.d.; AI 23 May 2006; Fiji Human Rights Commission 1 Sept. 2005). In April 2005, the High Court judge ruled that provisions in the penal code prohibiting homosexual sex were discriminatory and unconstitutional (ibid.; AI 23 May 2006; see also Gay Times n.d.). Although the judge ruled that private homosexual acts between consenting men are legal, he reportedly clarified that homosexual acts undertaken in public places remain illegal (Fiji Human Rights Commission 1 Sept. 2005).
The INTERIGHTS legal officer is quoted as saying that the judgement represents a "significant legal marker for policy makers" and that the ruling allows gay men to "legally...express their sexuality" (ILGA Oct. 2005). Fiji's vice president Ratu Jone Madraiwiwi reportedly said that homosexuals have a right to practice their lifestyle in private (Gay.com 1 Sept 2005).
The Methodist Church reportedly reacted to the High Court ruling by holding a rally protesting same-sex marriage (AI 23 May 2006; Isis n.d.), regardless of the fact that Fiji's constitution contains no provisions that would allow for gay marriage (ibid.). When the group applied to the government to hold a second rally, their application was refused (ibid.; AI 23 May 2006) reportedly because the Fiji Human Rights Commission warned that permitting further marches by the group would be tantamount to encouraging hate crimes (Isis n.d.; see also AI 23 May 2006). A reverend from the Methodist Church in Fiji and the vice president of a Muslim organization reportedly issued a release that said that gay people should be killed (ILGA Oct. 2005).
The police commissioner is "supportive" of the constitution's sexual orientation clause, according to a quote attributed to the SMP representative in a report produced by ILGA (Oct. 2005). The SMP representative said the police commissioner has publicly stated that trying to prosecute consenting adults who engage in homosexual sex is a "waste of police resources" since "being gay is not an offence" (ILGA Oct. 2005).
According to an article published in Village News, a Fijian online magazine, the Fiji Law Reform Commission is "likely to recommend" that the sections of the Penal Code that criminalize homosexuality be removed (25 Oct. 2006). Further information as to whether or not this recommendation has been put forward could not be found within the time constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.
Agence France Press (AFP). 30 May 2006. "Gay Film Festival Slammed for Offering Prize Trip to Anti-gay Fiji." (Factiva) [Accessed 12 Feb. 2007]
Amnesty International (AI). 23 May 2006. "Fiji." Amnesty International Report 2006.
Astraea Lesbian Foundation for Justice. 2006. Astraea Lesbian Foundation for Justice 2005-2006 Grants Docket.
Diva. N.d. "Lesbian and Gay Fiji."
Fiji. 25 July 1997. Fiji Islands Constitutional Amendment Act 1997.
_____ . 1 May 1945. Penal Code. Department for Information, Technology and Computing (ITC) Services.
Fiji Human Rights Commission. 1 September 2005. Shobhna Decloitre. "Another Aspect of the Sodomy Case."
Gay.com [London]. 1 September 2005. "Fiji Protests Gay Rights."
_____ . 24 June 2005. "Fiji's Gays See Rising Attacks."
Gay Times [London]. N.d. "Lesbian and Gay Fiji."
Human Rights Watch (HRW). 12 April 2004. "Fiji: Sodomy Law Convictions Violate Constitution."
International Centre for the Legal Protection of Human Rights (INTERIGHTS). N.d. "About Us."
International Lesbian and Gay Association (ILGA). October 2005. "Facts and Comments." Campaigning. Issue 119. <
_____ . 26 August 2005. "Fiji High Court Overturns Sodomy Law."
_____ . 15 March 2004. Carlos Perera. "Continuous Battle for the Removal of Sexual Orientation."
Isis International. N.d. Luisa Tora (with additional notes by Carlos Perera and Cresantia Frances Koya). "Masculinity, Gender Identity and Fiji's GLBT Community."
Reuters. 26 August 2005. "Australian Fijian Aquitted of Homosexual Crime."
Sydney Morning Herald (SMH) [Sydney]. 13 April 2005. "Fiji PM Says Homosexuality a Sin."
Village News [Suva]. 25 October 2006. "Major Changes Likely to Penal Code on Homosexual Misconduct." (Fijivillage.com)
Additional Sources Consulted
Oral Source: A representative from the Sexual Minorities Project was not able to provide information within the time constraints of this Response.
Internet sites, including: Islands Business, Methodist Church, Radio New Zealand International.