Dossier 27: The campaign for gender equality in family law: The passage of the controversial Fiji Family Law Act 2003 into law

Introduction

In October 2003, an historic moment came to pass. Fiji’s bi-cameral legislature passed the Family Law Act 2003 (FLA) into law, unanimously, with both sides of the House voting in favour of the Bill. Tears of joy were shed by staff and members of the Regional Rights Resources Team (RRRT) and the FWRM. Both organizations had worked hard to get the Bill passed. FWRM’s involvement in the family law reform process dates back to 1992 and RRRT’s to 1996. The writer’s own involvement dates back even earlier to 1987. The passage of the FLA has had a long and chaotic journey with powerful opponents against it but in the end Fiji’s Parliament passed the Bill into law.

The FLA heralds in a new era for Fijian families, but for women and children in particular. It will remove systemic discrimination against women, create a level playing field, put children at the focus of decisions and force parents to adequately care for their children. There is no separate legal system for religious minorities in Fiji. Muslim and non-Muslim women alike experience the same discrimination within the current family law. The new law comes into effect in November 2005. Whether or not the new Act lives up to its promise depends now on the political will of the present Government, the resources allocated to implement the Act and the tenacity of the lobby groups behind the new law.

But why was the Family Bill eventually passed? What combination of circumstances lead to this progressive, democratic legislation being passed? What lessons are to be learned from it?

In order to understand the political arena in which feminists in Fiji engage it is necessary to first have a basic knowledge of the political contexts. As in most countries, women in Fiji are not defined only by their sex and gender but by many forces and the interplay between them. In Fiji these forces include the consequences of colonisation and the policies of its colonial masters (the British divide and rule policy), the loss of democracy and the vulnerability to the coup cycle phenomenon, social and economic class, ethnicity, poverty, religious rightism (fundamentalism) and race. This presents huge and sometime insurmountable problems for women who are trying to mobilise as feminists around a feminist agenda.

Two massive political upheavals, seemingly racially motivated coups, and the loss of democracy in 1987 and 2000 have derailed feminist progress and given rise to questions of priorities of gender versus the political in terms of campaigning during times of instability.

The attempted abrogation of the 1997 Constitution was successfully challenged in the Courts by civil society and in late 2001 Fiji gradually returned to the rule of law with its Constitution still intact following elections in September 2001. The 1997 Constitution still provides for the application of customary laws in dispute resolution and in cases concerning traditional land ownership.

The 1997 Constitution established a Human Rights Commission to educate the public about the content of the Bill of Rights and to make recommendations to the Government about matters affecting compliance with human rights.

The 1997 Constitution is a remarkable and forward-looking constitution giving women unprecedented equal rights. The FWRM fought a long and bitter campaign with others to put in Article 38 of the Constitution, which gave women protection against discrimination on the grounds of sex, gender, marital status and sexual orientation.

Fiji chiefs ceded sovereignty over the Fiji Islands to Queen Victoria in 1874 to end territorial conquests among rival kingdoms. In 1879, the British began bringing Indian labourers to work on the sugar plantations. At independence in 1970, the indigenous Fijian and Indo-Fijian populations were roughly equal in population. Twenty percent of Indo-Fijians are Muslim (forming 10% of the overall population of about 850,000) and the rest are mostly Hindus although a small number of Indo-Fijians have converted to Christianity. Most indigenous Fijians are Methodist Christians.

After the 2000 crisis, the tourism industry fell apart – 7,000 people lost their jobs and more than 20 people died. In a population of 850,000 such events have catastrophic consequences on the economy and on the people. Poverty is a significant problem in Fiji. The UNDP Human Development Report (2004) states that 31% of the population lives in poverty.

The 1997 Constitutional amendment gave equal rights to indigenous Fijians and Indian Fijians – but seat allocations are based on race qualifications.

It is also stated that, “the paramountancy of Fijian interests as a protective principle continues to apply, so as to ensure that the interests of the Fijian community are not subordinated to the interests of other communities.”

At this writing (July 2005) there is relative stability and the rule of law is generally complied with. Many of those who committed treason or who committed coup related crimes in 2000 are serving long term prison sentences.

Repercussions for women’s rights activists

In late 2001, the State de-registered the vocal human rights NGO, the Citizens Constitutional Forum (CCF), for challenging the legality of the Government, and has threatened to de-register other NGOs that do not toe the line. Activist women’s NGOs are vulnerable to similar de-registration.

As NGOs are the driving force behind improvements to the status of women, such restrictions, combined with the absence of a legal framework for NGOs to register, have severely obstructed further work towards equality.

The role of women

In Fiji the vast majority of women’s organisations are neither multiracial in composition nor feminist in outlook. Most women’s organisations are race based, traditional and mobilise around traditional issues like handicraft or for religious or welfare service reasons. The number of organisations that are openly and challengingly multiracial and feminist can be counted on one hand. They include the FWRM, the Fiji Women’s Crisis Centre, Femlink Pacific and to a limited extent the Young Women’s Christian Association.

An example of women’s role in peace building during the hostage crisis was the National Council of Women (NCW) sponsored daily multiracial peace and prayer vigil. This fairly innocuous peace initiative grew into the Fiji Blue Ribbon Campaign, which grew into the Fiji Blue Democracy Campaign. The brains behind the Democracy Campaign were the NGO Coalition on Human Rights and Democracy made up of mostly women’s NGOs and the talented NGO, CCF.

Race, gender, democracy & the FWRM

The FWRM is a feminist NGO with a commitment to feminism, human rights and democracy.

The FWRM used to be a small but feisty player in the gender scene and women’s rights arena in Fiji. The two coups d’etat of 1987 and the political upheavals in 2000 have seen the growth of this NGO into a significant NGO in the broader spectrum of human rights issues. FWRM had grown from being a feminist NGO dedicated mainly to women’s issues to an organisation which is regarded as a legitimate social and political commentator and actor on a variety of legal, political, social, cultural and economic issues.

In 2000-2001 the majority of FWRM’s work on straight feminist issues came to a halt to allow it to focus its intellectual and other resources on the restoration of democracy and constitutional rule. However some of FWRM’s members and staff failed to understand that democracy is a pre-condition for the attainment of women’s rights and that the organisation had little choice but to engage in the political arena to aggressively push for the return to constitutional rule.

FWRM overcame its racial differences by focusing on campaigns that all its members could all agree on. They could not all agree on racial issues but they could certainly agree that certain human rights were so fundamental to all its members that they must combine their resources to ensure their protection.

The FLA and the forces against it

The multifarious forces against the Family Law Bill before it became law demonstrated the tenuous and ephemeral nature of the hard won rights of women in Fiji. They are highly vulnerable to the overwhelming forces of patriarchy and religious fundamentalism exacerbated by the political upheavals.

The family law in Fiji was based on nine pieces of legislation ranging from 1892 to 1973. The main legislation, the Matrimonial Causes Act, was based on 1953 British legislation word for word, imposed on Fiji when it was still a colony of Great Britain. The legislation, common law and legal practices associated with it were discriminatory against women, they legitimated violence against women, were sexist, patriarchal and based on rigid concepts of women’s roles within the family including women’s lack of autonomy.

For these reasons the FWRM had reform of the family law high on its agenda. Through its sterling work a commitment was made in 1995 by the then Government to reform the family law. The writer was named Family Law Reform Commissioner and with the FWRM and the Fiji Law Reform Commission, set out on the long and arduous task of consultation, gathering support for the new law and drafting the legislation to take into account modern lives of Fiji Islanders and to give women unprecedented equality.

The new Act sets up a separate division of the Court for family disputes based on counselling and conciliation, removes all forms of discrimination against women, grants them rights to enforceable custody and financial support for them and their children, removes fault based divorce (which legitimated violence against women in the home) and gives them for the first time in our history, a share in matrimonial property upon divorce. It requires recognition and implementation of the major women’s and children’s rights conventions (CEDAW and CRC). The latter is highly contentious in a country in which human rights are regarded as foreign impositions and land is tied up with the notion of identity politics. The Bill was presented to Parliament in May 2000 but the civilian uprising on 19 May 2000 thwarted its advancement. It lay dormant after the attempted coup d’etat and then was resurrected after the current Government came into power. It was presented to Parliament in May 2002 and then was again delayed by a huge and vicious backlash against the Bill by the religious right and some other elements. These were the objections to the Bill in summary:

• It had not been consulted enough;
• It was too ‘white’ and Western;
• Women are followers of men, the Bible says so. The Bill would upset God’s natural order of by granting women equality and thereby encouraging them to leave their husbands;
• It would elevate women to a higher status than men;
• The Bill was anti-Christian and anti-Fijian;
• Only adultery was a valid ground for divorce in the Bible if at all, violence certainly was not;
• It gave children rights over their parents which was against Fijian tradition;
• It would destroy the essential nature of Fijian indigenous society;
• It was against the chiefly system because illegitimate children would have rights to be traditional chiefs;
• It would allow same sex marriages and legally recognise de facto relationships;
• It would allow cloning (DNA testing to prove fatherhood) etc…

Every patriarchal objection that could be possibly made was made. The biggest opposition came from the very powerful, almost exclusively indigenous, Fijian Methodist Church, which is the current Government’s main backer. The writer of the Bill (the builder/drafter was an Australian judge) was accused of being an evil force in society and of trying to destroy the institution of marriage. Notwithstanding that the Bill for the first time introduced reconciliation and counselling as a method of dispute resolution.

The Bill went through another substantial year-long consultation process with the involvement of a 31 member joint sector Committee of Parliament going around the country to hear submissions. Many of the submissions were based on misunderstandings about the Bill – much of it deliberately propagated by the opponents of the Bill. One example is worth noting – a prominent Minister of the cloth kept insisting publicly that the Bill would legalise same sex marriages. The writer as Commissioner kept on insisting that this was not true and that he should point out the relevant provision. Despite this most people believed him. The writer finally issued him a public challenge to a televised live debate on the Bill. He did not take up the challenge. He did not make any more statements in the English speaking media after that but continued his campaign against the Bill only in the Fijian-speaking media. The FWRM did a radio campaign in Fijian to counter the damage done by the Minister.

Ironically when lobbying for the Bill women lobbying for the Bill faced specific dilemmas as feminists about how far they ought to go in addressing the whole menu of feminist issues. Should the Bill address sexual orientation and de facto relationships for instance? For women this presented the ultimate feminist dilemma/conundrum – how far could they go, given the deeply conservative nature of Fijian society and given the steps backwards for women in the wake of the political crisis of 2000?

• Should a provision to ensure that gay people were not denied rights to claim custody of their children be included? (The Constitution protects them anyway.)
• Should the Bill recognise de facto marriages? (The Constitution says that you cannot discriminate on the grounds of marital status.)

The public consultations had overwhelmingly stated their opposition to the inclusion of these advanced rights.

In the final analysis FWRM and RRRT made a strategic decision, knowing what Parliament would and would not pass into law. In the end FWRM had to think of its largest constituency, the poor women who would benefit from the Bill. It decided that pushing for the rights of gay relationships and de facto partners within this particular Bill would torpedo the whole Bill. It was a battle that they would not hesitate to engage in at a future date.

Another internal debate that took place amongst feminists was whether or not to openly promote the Bill as a woman’s equal rights Bill or to use the family and children’s rights to ‘sell’ the Bill? As feminists they felt that they should openly flaunt and celebrate the Bill but as political strategists they also knew that to do so might jeopardise the Bill. The decision was made to be strategic.

The objections against the Bill were more than just objections to the improved rights of women. They concerned the intersections between race, gender and democracy in the Fiji Islands. In the Bill women were asking for their fundamental rights and freedoms that ought to be guaranteed in any democracy. However, there was and still is widespread opposition to any change – particularly from the powerful indigenous Christian Fijian elite. Democracy and improved women’s rights are seen as a dangerous threat to their power, both in the public and private domains.

The objections by conservative/right wing elements are also tied up with Fijian nationalism – a negative nationalism confused with the politics of identity. It is based on flawed thinking dangerous both to women and democratic change that, “in order to retain their identity they must not change anything,” and that any change would threaten that nationalist identity. FWRM’s position is that any custom or tradition that is based on the subordination of women cannot be tolerated just because it is customary and therefore inherently sacred and inviolate.

Such groups were also using the Bill as a rallying point to make political gains in other areas. It is not unexpected that the main opposition comes from the Methodist Church, which views any kind of change as challenging indigenous rights as they perceive it saying, “the Bill will destroy (indigenous) Fijian society.” This is a clever strategy based on highly flawed arguments, to use race tensions to prevent gender equality. Many Indigenous Fijians are put immediately on their guard when there is a suggestion that change is ‘anti-Fijian’, even those who might support equal rights for women. Of course the Act will affect all races in Fiji and will undoubtedly alter the fundamental power balances within the family. The current power balance is essential to the religious right and fundamentalism. The balance of power rests also on women keeping their place, thus the Act is also about the underlying threat of women gaining power.

So why was the Family Law Bill finally passed into law becoming the FLA 2003?

Lessons Learned on the campaign for the FLA 2003

Why was the FLA 2003 (Fiji) eventually passed? What combination of circumstances can lead to human/women’s rights policy or legislation in your country? There has to be a fortuitous convergence of circumstances (multiple forces at play simultaneously), some, not all, of which must occur together at any given time:

• An existing democracy with guaranteed free speech because this means that citizens are allowed to challenge existing policies, law and practices;
• A credible lobby group and/or civil society that is allowed to function. They have the political space to mobilise and advocate for change. A protected Bill of Rights is an important component of this factor. In Fiji’s case, RRRT partner, the FWRM was the lead NGO supporting the passing of the Act;
• A government that is willing or is required to act within principles of good governance and to work with NGOs;
• A strong NGO movement which understands how government and governance functions and knows how to work within the system, both nationally and internationally;
• A powerful minister or other MP can be an important ally and champion for the change. They may be an opinion shaper or champion within cabinet or parliament who other MPs respect;
• An active and strong women’s ministry/department working from within government RRRT’s Government partners included the Attorney General’s Office, the FLRC and the Department of Women;
• A constitution which guarantees equal rights;
• A provision which states that human rights conventions must be applied if relevant. Fiji is fortunate to have such a provision in the 1997 Constitution Sec.43(2);
• The ratification of CEDAW and CRC which is a basis of justification for the change. For compliance reasons all domestic law must be consistent with the conventions;
• Reporting on CEDAW and CRC, a requirement of ratification. This provides a strategic opportunity to use the international accountability mechanism to push for domestic change. In Fiji’s case the UN CEDAW Committee highlighted the need for the Bill to be passed in its Concluding Comments after hearing the NGO Report. This enabled the women’s ministry and FWRM to help put the Bill back on the legislative agenda;
• Education of all major stakeholders on the need for reform, especially major opinion shapers;
• Working with all political parties to gather support for the proposed legislation. This may involve group seminars or one-to-one meetings;
• Public mass media campaigns and a responsive media – the media must be educated about the proposed law;
• State-wide consultations on the new law are essential for ownership and good governance;
• The Legal Rights Training Officers (LRTOs) and Community Paralegals (CPs) in Fiji working at provincial, village and community level providing education on the Bill and lobbying for support;
• A credible lobbyist/agent of change who may be the ‘face of change’, who the public and stakeholders relate to. S/he must be knowledgeable, have good people skills and is able to talk to anyone, everyone and relate to them on the issue. The lobbyist must be respected by politicians and public alike. This may be a formally appointed commissioner for law reform or one employed eg by the NGOs, on an informal basis;
• The right political climate. In the post-conflict situation in Fiji, people became more aware of their rights. The political upheavals brought out many problems to the forefront – for example, the increasing poverty caused by the lack of enforcement of maintenance orders for women and children;
• Important strategic partnerships – in this case the partnership existed between government (the Attorney General’s Office, Parliamentary Office, Department of Women, Fiji Law Reform Commission) and civil society (FWRM and other NGOs) with RRRT/UNDP providing technical and expert support to both government and NGOs. RRRT brokered and nurtured the extremely important Government and NGO relationship that ultimately led to the passing of the Bill with unanimous support of all parties in Parliament. The latter was an historic and unprecedented event in Fiji’s legislative history.
• Responding to criticism of forces against the change (i.e. the proposed law) with a strategic campaign based on persuasive dialogue and engagement.

The long term implications of the conflicts in Fiji on women’s rights

There are very compelling reasons to say that whatever backlash to the improvement of women’s situation had been heightened by the political crisis. These challenges demonstrate the very close connections between conflict, gender, race and democracy. One feeds the other. If there was any opportunity before 2000 for women to mobilise across the racial divide, the coup did enormous damage to those possibilities.

How can women mobilise as women around gender/feminist issues when they are so torn apart by race issues? The coup cycle reduces opportunities for mobilisation around gender issues because people are so polarised on racial lines. So these intersections, and the subtle and not so subtle interplays between them, affect women in every way. They go to the essence of what constitutes a Fijian women and that is why one cannot analyse gender issues isolated from democracy and race issues. They are all fundamental to the feminist analysis.

Conclusion

It is relatively easy for anti-feminist forces to derail a feminist campaign in Fiji by saying it is ‘anti-Fijian’ (i.e. indigenous Fijian). Immediately it puts indigenous Fijian women on their guard and prevents women from all races working together as women for women’s rights.

Despite the huge forces against it, the FWRM has proven that women can cross the huge racial chasms to work together for democracy and for women’s rights.

Acknowledgements

This paper is printed with permission from the author, P. Imrana Jalal, Human Rights Adviser, Regional Rights Resources Team and Board Member and Fiji Women’s Rights Movement.

Endnotes

1) http://www.spc.int/prism/fjtest/Social/pop.htm
2) Prepared by the former Fiji Law Reform Commissioner for Family Law and RRRT Human Rights Adviser, P Imrana Jalal, from a presentation given at the 9th Triennial Conference of Pacific Women, Nadi, Fiji, in August 2004.