National Constitutional provisions – Fiji

The Constitution of Fiji  27 July 1998, suspended since 2009

EDUCATION

Art.35

(2) Every person has the right, either individually or in community with others, and both in public and in private, to manifest his or her religion or belief in worship, observance, practice or teaching.

(3) The right set out in subsection (2) extends to the right of religious communities or denominations to provide religious instruction as part of any education provided by them, whether or not they are in receipt of any financial assistance from the State.

(5) Except with his own consent, (…), a person attending a place of education is not required to receive religious instruction or to take part in or attend a religious ceremony or observance, if the instruction, ceremony or observance relates to a religion that is not his or her own or if he or she does not hold any religious belief.

Art.39

(1) Every person has the right to basic education and to equal access to educational institutions.

(2) Every religious community or denomination and every cultural or social community has the right to establish and maintain places of education and to manage them, whether or not it receives financial assistance from the State.

(3) The admission policy of a place of education referred to in subsection (2) may be administered on the basis of the need to maintain its special character but, subject to that, those concerned in its management must ensure that it is open to all qualified students without discrimination on any ground prohibited by this Constitution.

(4) Nothing contained in, or done under the authority of, a law prescribing standards or qualifications for educational institutions is inconsistent with this section to the extent that the requirements of the law are reasonable and justifiable in a free and democratic society.

EQUALITY

Article  38

. (1) Every person has the right to equality before the law.

(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 of circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or

 (b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others; or on any other ground prohibited by this Constitution.

(3) Accordingly, neither a law nor an administrative action taken under a law may directly or indirectly impose a disability or restriction on any person on a prohibited ground.

(4) Every person has the right of access, without discrimination on a prohibited ground, to shops, hotels, lodging-houses, public restaurants, places of public entertainment, public transport services, taxis and public places.

(5) The proprietor of a place or service referred to in subsection (4) must facilitate reasonable access for disabled persons to the extent prescribed by law.

(6) A law, or an administrative action taken under a law, is not inconsistent with the right to freedom from discrimination on the ground of:

(a) language:

(b) birth;

(c) economic status;

(d) age; or

(e) disability;

during the period of 2 years after the date of commencement of this Constitution if the law was in force immediately before that date and has remained continually in force during that period.

http://confinder.richmond.edu/FijiIslands.htm (41 of 155)4/12/2005 11:26:20 AM

(7) A law is not inconsistent with subsection (1), (2) or (3) on the ground that it:

(a) appropriates revenues or other moneys for particular purposes;

(b) imposes a retirement age on a person who is the holder of a public office;

(c) imposes on persons who are not citizens a disability or restriction, or confers on them a privilege or advantage, not imposed or conferred on citizens;

(d) permits a person who has a discretion to institute or discontinue criminal proceedings to take account in the exercise of that discretion of traditional procedures in the State for the settlement of disputes; or

(e) makes provision with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters as the personal law of any person or the members of any group; but only to the extent that the law is reasonable and justifiable in a free and democratic society.

(8) A law, or an administrative action taken under a law, may limit a right or freedom set out in this section for the purpose of:

(a) providing for the application of the customs of Fijians or Rotumans or of the Banaban community:

(i) to the holding, use or transmission of, or to the distribution of the produce of, land or fishing rights; or

(ii) to the entitlement of any person to any chiefly title or rank;

(b) imposing a restriction on the alienation of land or fishing rights held in accordance with Fijian or Rotuman custom or in accordance with Banaban custom; or

(c) permitting the temporary alienation of that land or those rights without the consent of the owners.

(9) To the extent permitted by subsection (10), a law, or an administrative action taken under a law,

may limit a right or freedom set out in this section for the purpose of providing for the governance of Fijians or Rotumans or of the Banaban community and of other persons living as members of a Fijian, Rotuman or Banaban community.

(10) A limitation referred to in subsection (9) is valid only if it:

(a) accords to every person to whom it applies the right to equality before the law without discrimination

other than on the ground of race or ethnic origin; and (b) does not infringe a right or freedom set out in any other section of this Chapter.

CITIZENSHIP

Article 9

(1) Citizenship may be acquired by:

(a) birth:

(b) registration; or

(c) naturalisation.

(2) The Parliament may not make a law providing for the acquisition of citizenship in any other way.

LANGUAGE

Article  4

(1) The English, Fijian and Hindustani languages have equal status in the State.

(2) This Constitution is to be adopted in English but translations in Fijian and Hindustani are to be available.

(3) If, in the interpretation of a provision of this Constitution, there is an apparent difference between the meaning of the English version of the provision and its meaning in Fijian or Hindustani, the English version prevails.

RELIGION

Article  35

(1) Every person has the right to freedom of conscience, religion and belief.

(2) Every person has the right, either individually or in community with others, and both in public and in private, to manifest his or her religion or belief in worship, observance, practice or teaching.

(3) The right set out in subsection (2) extends to the right of religious communities or denominations to provide religious instruction as part of any education provided by them, whether or not they are in receipt of any financial assistance from the State.

(4) The right set out in subsection (2) may be made subject to such limitations prescribe by law as are necessary:

(a) to protect:

(i) the rights or freedoms of other persons; or

(ii) public safety, public order, public morality or public health; or to prevent a public nuisance.

 (5) Except with his or her consent or, in the case of a person under the age of 18, the consent of a parent or guardian, a person attending a place of education is not required to receive religious instruction or to take part in or attend a religious ceremony or observance if the instruction, ceremony or observance relates to a religion that is not his or her own or if he or she does not hold any religious belief.

(6) A person must not be compelled to take an oath, or to take an oath in a manner, that is contrary to his or her religion or belief or that requires him or her to express a belief that he or she does not hold.

HUMAN RIGHTS MECHANISMS

Article  41

 (1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress.

 (2) The right to make application to the High Court under subsection (1) is without prejudice to any other action with respect to the matter that the person concerned may have.

(3) The High Court has original jurisdiction:

(a) to hear and determine applications under subsection (1); and

(b) to determine questions that are referred to it under subsection (5); and may make such orders and give such directions as it considers appropriate.

(4) The High Court may exercise its discretion not to grant relief in relation to an application or referral, made to it under this section if it considers that an adequate alternative remedy is available to the person concerned.

(5) If in any proceedings in a subordinate court any question arises as to the contravention of any of the provisions of this Chapter, the member presiding in the proceedings may, and must if a party to the proceedings so requests, refer the question to the High Court unless, in the member's opinion (which is final and not subject to appeal), the raising of the question is frivolous or vexatious.

(6) When the High Court gives its decision on a question referred to it under this section, the court in which the question arose must dispose of the case in accordance with:

(a) the decision; or

(b) if the decision is the subject of appeal to the Court of Appeal or to the Supreme Court--the decision of the Court of Appeal or Supreme Court, as the case may be.

(7) The Attorney-General may, on behalf of the State, intervene in proceedings before the High Court that relate to a matter concerning a provision of this Chapter.

 (8) If proceedings before the High Court relate to a matter concerning a provision of this Chapter, the High Court must not proceed to hear and determine the matter until it is satisfied that notice of the matter has been given to the Attorney-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question of intervention in the proceedings.

(9) A notice under subsection (8) is not required to be given to the Attorney-General if the Attorney-

General or the State is a party to the proceedings.

(10) The Chief Justice may make rules for the purposes of this section with respect to the practice and procedure of the High Court (including rules with respect to the time within which applications are to be trade to the High Court).

Article 42

(1) This section establishes a Human Rights Commission.

(2) Its functions are:

(a) to educate the public about the nature and content of the Bill of Rights, including its origins in international conventions and other international instruments, and the responsibilities of the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and other organs of the General Assembly of the United Nations for promoting respect for human rights;

(b) to make recommendations to the Government about matters affecting compliance with human rights, including the making of a recommendation that a particular question about the legal effect of a provision of the Bill of Rights be referred to the Supreme Court for its opinion; and

(c) to perform such other functions as are conferred on it by a law made by the Parliament.

(3) The Human Rights Commission consists of 3 members:

(a) the Ombudsman, who is to be its chairperson;

 (b) a person who is qualified to be a judge; and

(c) one other member.

(4) The members of the Human Rights Commission referred to in paragraphs (3)(b) and (c) are appointed by the President on the advice of the Prime Minister, following consultation by the Prime Minister with the Leader of the Opposition and the sector standing committee of the House of Representatives responsible for matters concerning human rights.