Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Abolition of Forced Labour Convention, 1957 (No. 105) - Fiji (Ratification: 1974)

Article 1(a) of the Convention. Sanctions of imprisonment involving compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee previously noted that under the provisions of the Crimes Decree No. 44, 2009, sanctions of imprisonment (involving compulsory labour pursuant to section 43(1) of the Prisons and Corrections Act 2006) may be imposed in situations covered by Article 1(a) of the Convention, such sanctions being therefore incompatible with the Convention:

• – Section 65(2) provides for sanctions of imprisonment for: (a) making any statement or spreading any report, by any communication whatsoever including electronic communication, or by signs or by visible representation intended by the person to be read or heard, which is likely to: (i) incite dislike or hatred or antagonism of any community; or (ii) promote feelings of enmity or ill will between different communities, religious groups or classes of the community; or (iii) otherwise prejudice the public peace by creating feelings of communal antagonism; or (b) making any intimidating or threatening statement in relation to a community or religious group other than the person’s own which is likely to arouse fear, alarm, or insecurity among members of that community or religious group;
• – Section 67(b), (c) and (d) provides for sanctions of imprisonment for any person who utters any seditious words; prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication; or imports any seditious publication.

The Committee recalled that sanctions involving compulsory labour are incompatible with the Convention where they enforce a prohibition of the peaceful expression of non-violent views or of opposition to the established political, social or economic system. It therefore requested the Government to take measures to review the mentioned provisions in order to bring them into conformity with the Convention.

The Committee notes the Government’s indication that sections 65(2) and 67(a), (b) and (c) of the Crimes Decree aim to protect the peace of all people and communities in Fiji, in particular, with regard to ethnic tensions that culminated in coups d’état in 1987 and 2000. The Government also states that no persons or groups of persons have ever been charged under the mentioned provisions.

The Committee observes that the Public Order (Amendment) Decree No. 1, 2012, amends certain provisions of the Public Order Act (POA), 1969, so as to strengthen sanctions of imprisonment applicable to the following circumstances:

• – Section 10, which amends section 14(b) of the POA, increases from three months to three years the sanction of imprisonment for: (a) using threatening, abusive or insulting words; or behaving with intent to provoke a breach of the peace in any public place or at any meeting; or (b) having been given by any police officer any directions to disperse or to prevent obstruction or for the purpose of keeping order in any public place, without lawful excuse, contravenes or fails to obey such direction;
• – Section 13, which amends section 17 of the POA, establishes a new element under the offence of “inciting racial antagonism” (spreading any report or making any statement which is likely to undermine or sabotage or attempt to undermine or sabotage the economy or financial integrity of Fiji, section 17(1)(a)(v)), and increases from one to ten years the sanction of imprisonment applicable to any person violating section 17 and its subsections.

The Committee observes that the provisions of the Crimes Decree and of the Public Order (Amendment) Decree referred to above are formulated in such general terms that they may lead to the imposition of penalties involving compulsory labour as a punishment for the peaceful expression of views or of opposition to the established political, social or economic system, and that such penalties are incompatible with the Convention. The Committee therefore expresses the firm hope that appropriate measures will be taken with a view to amending the above provisions, either by repealing them, by limiting their scope to acts of violence or incitement to violence, or by replacing sanctions involving compulsory labour with other kinds of sanctions (e.g. fines), in order to ensure that no form of forced or compulsory labour (including compulsory prison labour) may be imposed on persons who, without using or advocating violence, express certain political views or oppositions to the established political, social or economic system.

Article 1(d). Penal sanctions involving compulsory labour for having participated in strikes. The Committee previously noted that, under sections 250 and 256(a) of the Employment Relations Promulgation No. 36 of 2007 (ERP), organizing and participating in unlawful strikes is punishable with sanctions of imprisonment for a term of up to two years (which involves compulsory prison labour). The Committee also noted the Government’s indication that, although the ERP was in the process of being revised, no proposal to amend section 250 had been submitted. The Committee notes the Government’s brief indication that the revision of the ERP has been completed and that, since the adoption of the Promulgation in 2007, no charges of unlawful strike under section 250 have been brought before the Employment Relations Tribunal.

The Committee further notes that pursuant to section 27 of the Essential National Industries (Employment) Decree of 29 July 2011, strikes in essential services are punishable with penalties of imprisonment of up to five years. Referring to paragraph 315 of its General Survey of 2012 on the fundamental Conventions, the Committee recalls that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike. The Committee therefore urges the Government to take the necessary measures to repeal or amend the abovementioned provisions of the Employment Relations Promulgation No. 36 of 2007, and of the Essential National Industries (Employment) Decree, 2011, so as to ensure that persons peacefully organizing or participating in a strike are not liable to imprisonment involving an obligation to work. The Committee requests the Government to provide information on progress made in this regard.

The Committee is raising other matters in a request addressed directly to the Government.