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Fiji: The Role of Culture in Shaping Judicial Opinions

The Role of Culture in Shaping Judicial Opinions in
Sexual & Gender Based Violence (SGBV) Cases: Fiji Case Law Survey

In Fijian culture, bulubulu – a custom for reconciling differences – is an essential part of traditional village life. Disputes were settled with the offer of a whale’s tooth (tabua), a gift or compensation, and asking for forgiveness. There is social pressure to accept this apology because the  historic outcome of accepting bulubulu was to break the cycle of vengeance. The  offer is directed  to the senior male member of the family, but generally not the victim. As the population has begun to move from rural to urban locations, however, the “custom itself is being redefined.”

It is important to note that traditional reconciliation (bulubulu) is practiced by the indigenous population (I-Taukei), however, the more common understanding of “reconciliation” between two parties is also used by the non-indigenous population.

Advocates from Fijian Women’s Crisis Center (FWCC) argue that  the current practice of bulubulu in violence against women cases is an affront to the traditional practice of bulubulu “because in the olden days, the punishment for the crime [of rape] under customary law was death.” Over the past two decades, bulubulu has been manipulated by perpetrators of SGBV to: get sexual assault and domestic violence cases dropped by police officers, receive reduced court sentences, and deny redress to survivors of SGBV. Unfortunately, judges contribute to the misuse of reconciliation (in both its forms) in SGBV cases because of their reliance on using the evidence of reconciliation to mitigate sentences. Judges have also expanded the applicability of reconciliation to sexual assaults and domestic violence in the Criminal Procedure Statute, even though the statue provides for reconciliation only in common assaults.

In reviewing the Pacific Islands Legal Information Institute database, we narrowed our review to 61 total cases at the Magistrate, High Court, High Court (Appellate Jurisdiction), Court of Appeals, and Supreme Court level from 1977-2013 where reconciliation was considered as a mitigating factor in sexual assault and domestic violence cases.

The case law survey looked at 3 primary points:

  • Was evidence of reconciliation in SGBV a factor in mitigating the defendant’s sentence;
  • Did the court award no custodial sentence or partially suspend a sentences where the perpetrator was found to have committed SGBV;
  • Whether or not reconciliation was used to mitigate a sentence in that case, did the judge generally believe it was acceptable to do so in SGBV cases.

In 27 of 55 cases (6 were N/A for this point), or 49% of cases, judges used reconciliation as a factor in mitigating the sentence in domestic violence and sexual assault cases. In 30 of 59 cases, or 50.8% of case, judges gave no custodial sentences or partially suspended sentences in sexual assault and domestic violence cases. Interestingly, almost all the judges cited legislation that specifically prohibited the dismissing of SGBV cases because there was evidence of reconciliation, yet, other factors like the defendant being a “first time offender,” or “sole bread winner,” led to outright suspension of sentences. And, finally, slightly more than half the judges who rendered decisions in these cases believed that it was acceptable to reduce a sentence based on evidence of reconciliation.

In breaking down the data, we found that after the Domestic Violence Decree 2009 went into effect, judges were more cognizant in their judicial opinions of not giving undue weight to reconciliation because of the power imbalance. Yet, since 2010, Magistrate judges still used reconciliation to mitigate sentences in 77.7% of cases (14 of 18). In contrast, in all the High Court, Appellate Jurisdiction cases (8; 1 N/A) where the appellant sought reduction of sentence based on reconciliation, not one case awarded a reduced sentence. A similar result was reached in all Court of Appeal (3) cases. This brings into question the value of precedent and authority of the higher courts.

One example is the Supreme Court’s refusal to reduce a sentence in a domestic violence case where the husband had “expressed remorse in Fijian style [bulubulu].” The Court was clear, “[t]he responsibility for his conduct must rest upon the husband. If by reason of his crimes his family may be reduced to poverty the blame cannot be laid at the door of the Court which imprisons him. Even in 1977, the Supreme Court understood that there was a power imbalance in SGBV cases and that accountability (custodial sentences) was necessary to prevent husbands from having a license to harm women. Yet, this long-standing precedent continues to be ignored.

Despite the Assistant Minister of the Fiji Ministry for Women, Social Welfare and Poverty Alleviation’s contention that reconciliation functions largely outside the legal system, judges today continue to mitigate sentences for sexual assault and domestic violence cases based on reconciliation, as shown in our case law survey analysis.

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THE INDIAN CONSTITUTION AND LEGAL
ASSIMILATION OF SIKHISM, BUDDHISM,
AND JAINISM INTO HINDUISM

"Article 25, sub-clause 1 of the Indian Constitution guarantees
that “subject to public order, morality and health,
all persons are equally entitled to freedom of conscience
and the right to freely to profess, practice and propagate
religion.”38 However, its sub-clause 2 (B) and its corresponding
Explanation II is considered very controversial.
While Explanation I states that the wearing and
carrying of kirpans shall be deemed to be included in
the profession of the Sikh religion. Explanation II in
sub-clause 2 (B) states, “Hindus shall be construed as
including a reference to persons professing the Sikh, Jain
or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.”39 This
constitutional provision is very discriminatory, as it connotes
that even as a multi-faith state, India seems to be
concerned about the social welfare of only one religion
(Hinduism) and its religious institutions. The appended
Explanation II effectively groups Sikhs, Buddhists, and
Jains into Hinduism. Explanation II has also led to other
discriminatory laws against these religions, including
the Hindu Succession Act (1956), Hindu Marriage Act
(1955), Hindu Adoptions and Maintenance Act (1956),
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