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Fundamental Freedoms Decree 1987

REPUBLIC OF FIJI

FUNDAMENTAL FREEDOMS
DECREE NO.12

MILITARY GOVERNMENT OF FIJI

IN exercise of the powers vested in me as the Commander and Head of the Military, Government of Fiji, I hereby make the following Decree:

1. This Decree may be cited as the Fundamental Freedoms Decree No. 12.

2. `(1) All laws in force in the Republic of Fiji immediately before the commencement of this Decree, in so far as they are inconsistent with the provisions of this Decree, shall to the effect of such inconsistency be void. Save as aforesaid, it is expressly decreed that the provisions of the Fiji Service Commissions and Public Service (Amendment) Decree No. 10 shall not be affected by this subsection and section 17 of this Decree.

(2) In this Decree unless the context otherwise requires:

"law" includes any Ordinance, order, by-law, rule, regulation, notification, custom or usage in the Republic of Fiji having the force; of law;

"laws in force" has the same meaning as that ascribed to "existing laws" in Decrees No. 2 Subsection 2(a), (b), and No. 3. Section (8) (1), (2).

3. Every person in the Republic of Fiji is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place or origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following:

(a) life, liberty, security of the person and the protection of the law;

(b) freedom of conscience, or expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from deprivation of property without compensation;

The provisions of this Decree shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.

4. The Fiji Military Government may by decree under the hand of the Head of the Military Government impose -

(a) on the rights conferred by paragraph (a) of Section 3, such restrictions as it deems necessary or expedient in the interest of the security of the Republic of Fiji or any part thereof, friendly relations with other countries, public order or morality;

(b) on the rights conferred by paragraph (b) of Section 3 such restrictions as it deems necessary or expedient in the interest of the security of the Republic of Fiji or any part thereof or public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence;

(c) on the right conferred by paragraph (c) of Section 3 such restrictions as it deems necessary or expedient in the interest of the security of the Republic of Fiji or any part thereof, of public order or morality.

5. (1) There shall be no intentional deprivation of a person’s life save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted.

(2) It shall not be regarded as an intentional deprivation of life if the person dies as a result of the use, and to such extent and in such circumstances as are permitted by decree or existing laws, of such force as is reasonably justifiable -

(a) for the defence of any person from violence or for the defence of property;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny; or

(d) in order to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war.

6. (1) It shall be the right of every person to enjoy personal liberty save as may be authorised by existing laws or decree in any of the following cases -

(a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Fiji or elsewhere, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of a court punishing a person for contempt of that court or of another court or tribunal;

(c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by an existing law or decree;

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit a criminal offence;

(f) under the order of a court or with the consent of his parent and guardian for his education or welfare during any period ending not later than the date when lie attains the age of eighteen years;

(g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Fiji or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Fiji; or

(j) to such extent as may be necessary, in the execution of a lawful order requiring that person to remain within a specified area within Fiji or prohibiting him from being within such an area or such extent as may be reasonably justifiable for the taking of proceedings against that person with a view to the making of any such order or relating to such an order after it has been made, or to such extent as may be reasonably justifiably for restraining that person during any visit that he is permitted to make to any part of Fiji in which in consequence of any such order, his presence would otherwise be unlawful.

(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, the reasons for his arrest or detention.

(3) Any person who is arrested or detained -

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under the existing laws in force or decrees in the Republic of Fiji;

and who is not released, shall be brought without any undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions: including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.

(4) Any person who is unlawful arrested or detained by any other person shall be entitled to compensation therefore that other person.

(5) A person who is arrested or detained shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and/or with a lawyer of his choice so that he might be able to give adequate instructions to a lawyer of his choice in the place in which he is detained.

(6) a person arrested or detained for an offence is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice other wise requre.

7. (1) Property of any description shall not be compulsorily taken into possession and no interest in or right over property of any description shall be compulsorily acquired, except under the authority of an existing law or a decree that -

(a) require the acquiring authority to give reasonable notice of the intention to take possession of, or acquire the interest in or right over, the property to any person owning the property or having any other interest or right therein that would be affected by such taking of possession or acquisition;

(b) requires the acquiring authority to apply to the Supreme Court for an order authorising such taking of possession or acquisition or to apply thereto within thirty (30) days of such taking of possession for such an order as aforesaid;

(c) requires the Supreme Court act to grant such an order unless it is satisfied that the taking of possession or acquisition is necessary or expedient in the interests of defence public safety, public order, public morality, public health, town and country planning or utilisation of any property in such a manner as to promote the public benefit;

(d) requires the acquiring authority to pay damages in respect of such taking of possession prior to an application to the Supreme Court when such an order is not granted and requires the prompt payment of adequate compensation nor the taking of possession or acquisition where such an order is granted;

(e) requires the acquiring authority, if no agreement as to the amount and manner of payment of compensation has been concluded with any claimant to compensation within thirty days of the grant of the order referred to in paragraph (b) of this subsection of the Decree, to apply to the Supreme Court for the determination of those matter in relation to that claimant (including where necessary, any question as to his entitlement to compensation); and

(f) requires the acquiring authority to pay the costs reasonably incurred by any other party in connection with the proceedings before the Supreme Court for any of the aforesaid purposes,

including any appeal (not made unreasonably or frivously) from any decision of that Court or the Court of Appeal given for those purposes.

(2) Nothing contained or done under the authority of any law shall be held to be inconsistent with or in constravention of subsection (1) of section 7 of this Decree to the extent that the law in question authorities the taking of possession of property compulsory during a period of emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community and makes provisions that-

(a) requires the acquiring authority promptly to inform any person owning the property of the taking of the possession;

(b) enables any such person to notify the acquiring authority that the objects to the compulsory possession of the property by that authority;

(c) requires the acquiring authority, in the case of any such notification, to apply within thirty years thereafter to an independent and impartial tribunal, appointed by the Chief Justice from among persons who are qualified to practise as barristers and solicitors in Fiji, for a determination of the authority is entitlement to compulsory possession of the property;

(d) requires the tribunal to order the acquiring authority to return the possession of the property unless the tribunal is satisfied that its possession by that authority is reasonably justifiable, in the circumstances of the situation existing, for the purpose of dealing with that situation;

(e) requires the prompt payment of adequate compensation for the taking of possession; and

(f) enables application to be made by any claimant to compensation to the tribunal for the determination of the amount and manner of payment of compensation in relation to that claimant (including, where necessary, any question as to his entitlement of compensation).

(3) No person who is entitled to compensate under this section shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Fiji.

(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the preceding subsection to the extent that the law in question authorities -

(a) the attachment, by order of a court, of any amount of compensation to which a person is entitled in satisfaction of the judgement of a court or pending the determination of civil proceedings to which he is a party; or

(b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted.

(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section -

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property-

(i) in satisfaction of any tax, duty, rate, cess or due;

(ii) by way of penalty for breach of the law, or forfeiture in consequence of a breach of the law;

(iii) as an incident of a grant, lease, tenancy, mortgage, charge, bill of sale, pledge, contract, permission or licence;

(iv) in the execution of judgments or order of a court;

(v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants;

(vi) in consequence of any law with respect to the limitation of actions or acquisitive prescription; or

(vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or injury or, in the case of land, for the purposes of the carrying out thereon of work of soil conservation for the conservation of other natural resources or work relating to agricultural development or improvement (being work relating to such development or improvement that the owner or occupier of the land has been required, and has without reasonable excuse refused or failed, to carry out).

(a) except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; or

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of any of the following property (including an interest in or right over property), that is to say -

(i) enemy property;

(ii) property of a person who has died or is unable, by reason of legal incapacity, to administer it himself, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court, or, by order of a court, for the purpose of giving effect to the trust.

(6) Nothing in this section shall affect the making or operation of any law so far as it provides for the vesting in the Military Government of Fiji of the ownership of underground water or unextracted minerals.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision for the compulsory taking possession of any property or the compulsory acquisition of any interest in or right over property where that property, interest or right is held by a body corporate, established by law for public purposes, in which no moneys have been invested other than moneys provided from public funds.

(8) For the purposes of subsections (1) and (2) of this section of the Decree "acquiring authority" means the person or authority intending to take possession of, or acquire the right or interest in, the property compulsorily or who has taken possession of, or acquired the interest or right in, the property compulsorily, as the context may require.

8. (l) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation or mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights or freedoms of other persons;

(c) that authorises an officer or agent of the Military Government of Fiji, or of a local authority, or of a body corporate established by law for public purposes, to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Military Government of Fiji, authority, or body corporate, as the case may be; or

(d) that authorises, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

9. (l) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be given a fair hearing within a reasonable time by an independent and impartial court establishment by existing law or decree.

(2) Every person who is charged with a criminal offence -

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence;

(c) shall be given adequate time and facilities for the preparation of his defence;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense;

(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge,

and, except with his own consent, the trial shall not take place in his absence unless he so conduct himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

(3) When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description that the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order or a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he shows that he has been granted a pardon, by competent authority, for that offence.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by existing law or decree and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time.

(9) Except with the agreement of the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(10) Nothing in the preceding subsection shall prevent the court or other authority from excluding from the proceedings (except the announcement of the decision of the court or other authority) persons other than the parties thereto and their legal representatives to such extent as the court or other authority -

(a) may by law be empowered so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings; or

(b) may by existing law or decree be empowered or required to do so in the interests of defence, public safety or public order.

(11) Nothing contained in or done under the authority of any existing law or decree shall be held to be inconsistent with or in contravention of -

(a) subsection (2) (a) of this section to the extent that the existing law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2) (e) to this section to the extent that the existing law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or

(c) subsection (5) of this section to the extent that the existing law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force so, however, that any court so trying such a member and convicting him shall, in sentencing him to any punishment, take into account any punishment awarded him under that disciplinary law.

(l2) For the purpose of subsection (2) of this section a person who has been served with a summons or other process requiring him to appear at the time and place appointed for this trial and who does not so appear shall be deemed to have consented to the trial taking place in his absence.

10. (l) The Republic of Fiji shall give to Christianity the foremost place and accordingly, it shall be the duty of the Military Government of Fiji to protect and foster Christianity, while assuring to all religions the rights granted hereunder.

(2) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(3) Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage any place of education which it wholly maintains.

(4) No religious community shall be prevented from providing religious instruction for persons of that community in the course of any education provided by that community, whether or not that community is in receipt of any government subsidy, grant or other form of financial assistance designed to meet, in whole or in part, the cost of such course of education.

(5) Except with his own consent (or, if he is a person who has not attained the age of eighteen years, the consent of his guardian), no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion which is not his own.

(6) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision -

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights of freedoms of other persons, including the right to observe and practise any religion without the unsolicited intervention of members of any other religion; or

(c) with respect to standards or qualifications to be required in relation to places of education including any instruction (not being religious instruction) given at such places,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(8) References in this section to a religion shall be construed as including references to a religious denomination, and cognate expressions shall be construed accordingly.

11. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights or freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting or television; or

(c) for the imposition of restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

12. The provisions of section 11 of this Decree are hereby suspended from the date of this decree until otherwise ordered in so far as those activities relate to political activity by whatever party, group or affiliation in the interest of public order and public safety.

l3. (l) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights or freedoms of other persons; or

(c) for the imposition of restrictions upon public officers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

14. The provisions of section 13 of this Decree are in so far as they relate to or concern or bear upon:

(a) industrial action by trade unions in the form of strikes, bans, go slow campaigns, protest marches and demonstrations;

together with political activity referred to in sections 11 and 12 above is hereby suspended from the date of this decree until otherwise ordered in the interests of public order.

15. (l) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Fiji, the right to reside in any part of Fiji, the right to enter Fiji, the right to leave Fiji and immunity from expulsion from Fiji.

(2) Any restrictions on a person’s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section.

(3) Nothing contained in or done under the authority of any existing law or decree shall be held to be inconsistent with or in contravention of this section to the extent that the existing law or decree in question makes provision -

(a) for imposing restrictions on the movement or residence within Fiji of any person or on any person’s right to leave Fiji that are reasonably required in the interests of defence, public safety or public order;

(b) for imposing restriction on the movement or residence within Fiji or on the right to leave Fiji of persons generally or any class of persons in the interests of defence, public safety, public order, public morality or public health, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;

(c) for imposing restrictions, by order of a court, on the movement or residence within Fiji of any person or on and, person’s right to leave Fiji either in consequence of his having been found guilty of a criminal offence or for the purpose of ensuring that he appears before a court at a later date for trial for such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition of lawful removal from Fiji.

(d) for imposing restrictions on the movement or residence within Fiji of any person who is not a citizen of Fiji or for excluding or expelling any such person from Fiji;

(e) for imposing restrictions on the acquisition or use by any person of any property` in Fiji;

(f) for imposing restrictions on the movement or residence within Fiji or on the right to leave Fiji of any public officer;

(g) for the removal of a person from Fiji to be tried or punished in some other country for a criminal offence under the law of that other country or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence of which he has been convicted; or

(h) for imposing restrictions on the right of any person to leave Fiji that are reasonably required in order to secure the fulfilment of any obligations imposed on that person by law, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(4) If any person whose freedom of movement has been restricted by virtue of such a provision as is referred to in paragraph (a) of the preceding subsection so requests at anytime during the period of that restrictions not earlier than three months after the order imposing that restrictions was made or three months after he last made such a request, as the case may be, his case shall he reviewed by an independent and impartial tribunal presided over by a person appointed by the Chief Justice from among persons who are qualified to practise as barristers and solicitors in Fiji.

(5) On any review by a tribunal in pursuance of the preceding subsection of the case of any person whose freedom of movement has been restricted, the tribunal may make recommendations concerning the necessity or expediency of continuing that restriction to the authority by whom it was ordered and, unless it is otherwise provided by law, that authority shall be obliged to act in accordance with any such recommendations.

16. The provisions of sub-sections (4) and (5) of 15 of this decree are hereby suspended until the subject of further decree. In the interim any person aggrieved shall make application in writing to the Commander and Head of the Fiji Military Government.

l7. (1) Subject to the provisions of this section -

(a) no law shall make any provision that is discriminatory either of itself or in its effect; and

(b) no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.

(2) In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed, whereby persons of one such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.

(3) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) (a) of this section to the extent that the law in question makes provision -

(a) for the appropriation of revenues or other funds of Fiji;

(b) with respect to persons who are not citizens of Fiji;

(c) for the application, in the case of persons of any such description as is mentioned in the preceding subsection (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description;

(d) for the application of customary law with respect to any matter in the case of persons who, under that law, are subject to that law;

(e) whereby persons of any such description as is mentioned in the last foregoing subsection may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society;

(f) for standards or qualifications (not being standards or qualifications specifically relating to race, place of origin, political opinions, colour or creed) to be required of any person who is appointed to, or to act in, any public office, any office in the service of a local authority or any officer in a body corporate established by any law for public purposes; or

(g) for authorising the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists in Fiji during that period.

(4) Subsection (1) (b) of this section shall not apply to -

(a) anything that is expressly or by necessary implication authorised to be done by any provision of existing law or decree that is referred to in the preceding subsection; or

(b) the exercise of any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Decree or any other existing law or decree.

(5) Nothing contained in or done under the authority of any existing law or decree shall be held to be inconsistent with or in contravention of subsection (l) of this section -

(a) if the existing law in question was in force immediately before 25th September 1987 and has continued in force at all times since that day; or

(b) to the extent that it repeals and re-enacts any provision which has been contained in any written law at all times since immediately before that day.

(6) Subject to the provisions of the next following subsection, no person shall be treated in a discriminatory manner in respect of access to shops, hotels, lodging-houses, public restaurants, eating-houses or places of public entertainment or in respect of access to places of public resort maintained wholly or partly out of public funds or dedicated to the use of the general public.

(7) Nothing contained in or done under the authority of any law shall he held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (2) of this section may be subjected to any restrictions on the rights and freedoms guaranteed by sections 8, 10, 11, 13 and 15 of this Decree being such a restriction as is authorised section 8(2), section 10(5), section 11(2), section 13(2) or section 15(3) (a) or (b), as the case may be.

18. (l) Where a person is detained by virtue of any existing law or decree that authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists in Fiji during that period, the following provisions shall apply, that is to say -

(a) he shall, as soon as reasonably practicable and in any case not more than seven days after the commencement of his detention, be furnished with a statement in writing, in a language that he understands, specifying in detail the grounds upon which he is detained;

(b) not more than fourteen days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provision of law under which his detention is authorised;

(c) not more than one month after the commencement of his detention and thereafter, during his detention at intervals of not more than six months, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice from among persons qualified to practise as barristers and solicitors in Fiji;

(d) he shall be afforded reasonable facilities to consult a legal representative of his own choice who shall be permitted to make representations to the tribunal; and

(e) at the hearing of his case by the tribunal he shall be permitted to appear in person or by a legal representative of his own choice.

(2) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.

(3) Nothing contained in subsection (1) (d) or (e) of this section shall be construed as entitling a person to legal representation at public expense.

19. (1) If any person alleges that any of the provisions of this Decree has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction -

(a) to hear and determine any application made in pursuance of the preceding subsection;

(b) to determine any question which is referred to it in pursuance of the next following subsection,

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of this Decree:

Provided that the Supreme Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.

(3) If any proceedings in any subordinate court any question arises as to the contravention of any proceedings of the provisions of this Decree, the person presiding in that court may, and shall, if any party to the proceedings so requests, refer the question to the Supreme Court.

(4) Where any question is referred to the Supreme Court in pursuance of the last foregoing subsection, the Supreme Court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision or, if that decision is the subject of an appeal to the Court of Appeal.

(5) The Supreme Court shall have such powers in addition to those conferred by this section as may be prescribed for the purpose of enabling that court more effectively to exercise the jurisdiction conferred on it by this section.

(6) The Chief Justice may make rules for the purposes of this section with respect to the practise and procedure of the Supreme Court (including rules with respect to the time within which application may be brought and references shall be made to the Supreme Court).

20. (l) In this Decree, unless the context otherwise requires -

"contravention", in relation to any requirement includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;

"court’ means any court of law having jurisdiction in the Republic of Fiji, but excepting, save in sections 5 and 6 of this Decree, a court established by a disciplinary law;

"criminal offence" means a criminal offence under the existing laws and decrees of the Republic of Fiji;

"legal representative" means a person lawfully in or entitled to be in Fiji and entitled to practise in Fiji as a barrister and solicitor;

"member", in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline.

(2) Nothing contained in sections 11, 13 or 15 of this Decree shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to their communication or association with other persons or as to their movements or residence.

(3) In relation to any person who is a member of a disciplined force of Fiji, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Decree other than sections 5, 6 and 9.

(4) In relation to any person who is a member of a disciplined force of Fiji and who is present in Fiji in pursuance of arrangements made between the Military Government of Fiji and another Government or an international organisation, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Decree.

(5) No measures taken in relation to a person who is a member of a disciplined force of a country with which Fiji is at war and no law, to the extent that it authorises the taking of any such measures, shall be held to be inconsistent with or in contravention of any of the provisions of this Decree.

(6) In this Decree "period of public emergency" means any period during which -

(a) Fiji is engaged in any war; or

(b) there is in force a proclamation by the Commander and Head declaring that a state of public emergency exists.

(7) Without prejudice to the power of the Commander and Head to revoke at any time a proclamation made for the purposes of the last foregoing subsection, such a proclamation shall lapse at the expiration of six months from the date it was made.

Dated this 14th day of October 1987.

COLONEL SITIVENI LIGAMAMADA RABUKA. O.B.E. (Mil.)
Commander and Head of The Military Government of Fiji

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