The Ambiguous Domestic Violence Restraining Order in Fiji

Domestic Violence Restraining Order is also known as the ‘protective order’ which serves to protect an individual from being physically or sexually abused, threatened, stalked or harassed. The domestic violence restraining order provision came into existence through the Domestic Violence Decree of 2009. Prior to this, there was no such ambiguous legislation in Fiji; though on an international level, the domestic violence laws were enforced through the Vienna Declaration in 1993 which regarded women’s rights as Universal Human Rights and given the status of being paramount above all other rights. The human rights itself came about in 1215 when King John agreed to the treaty of the Magna Carta Libertatum as the world’s first human rights constitution. (Vincent, 2018) According to the Vienna declaration, all forms of gender based violence were to be minimized inclusive of violence against the females in public and personal life. The United Nations through its development program very cunningly seeped the domestic violence law coated with human rights into the laws of countries such as Fiji. Every being inherits the basic fundamental right to freedom which includes freedom from intimidation, torture and violence. The governments of undeveloped countries in the Pacific subject themselves to the submission of the United Nations. From a political aspect, this submission provides a huge benefit to the political party in power as the United Nations through its Trust Fund provides millions of dollars annually for the sustainability and stability of such laws. Since the inception of the UN Trust Fund in 1996, the fund has awarded a total of FJD 246 million dollars to 139 countries and territories. (Nations, 2018) The governments of the undeveloped nations in their greed for finance forget that the wellbeing and comfortability of its citizens should be the first priority as such any law enforced should at all timesbe in harmony with the majority of its subjects. The UN Trust Fund annually provides the grants however the public never receives a transparent report on the utilization of the same grant.

The Domestic Voilence Decree 2009was the 3rd decree of the interim Bainimarama government which was handed by then Vice Precident, Epeli Nailatikau on the 7th day of the Augest year 2009. The decree or Act as the same is an Act of parliament now is divided into 4 parts with a total of 82 sections. The author chooses specifically Part 3 Sections 19- 38 as the research and discussion topic and makes an attempt to highlight the insufficiencies and adverse aspects and its’ impact to the Fiji population in general. Sections 19 to 38 of Part 3 specifically deals with Domestic Voilence Restraining Order which s granted by the family division of the Magistrates Court in Fiji. The first of the arugument ignites from in Section3 of the decree which in defining domestic voilence leaves room for questions in relation to threatening, intiimidating or harassing. These three words need to be interpreted correctly and it should be approached literally as that intself will give the citizens an idea of what the legislators meant when the said law was made. Presently the same law is being used as a sword when it was supposed to act as a shield for the female gender. The law is abused to its most and by the power of this piece of legislation, a high rate of family separation is recorded in Fiji. When compared to the 1980’s and 90’s era, Fiji did have domestic voilence but the figures of family divisions were very low. After the enforcement of the Domestic Voilence Restraining Order, these numbers in relation to family disputes rose at an alarming rate. By the powers and enforceability of part 3 of the Domestic Voilence Decree majority of the male population live in fear from their spouses as even a bold statement could subject one to this law. Repealing the law is impossible due to the association it has with international countries however this law needs to be re-visited and the definition of each word of the domestic violence restraining order ought to be defined as a reasonable person would define it.

The second point of argument is based on Part 3 Section 19 sub section 1 where an application for the order can be made by any individual. Research has proven that the majority of the applicants simply need a ‘time – out’ from the normal family life and the resort to this law to legally distance themselves away from their husbands or partners. This section should be ammended by inserting a clause in which the resident magistrates’ or the counselor should call for the presence of both parties before the court and interview with caution the reason for a Domestic Violence Restraining Order application.

The third arguement point ignites from Section 27 sub section (2) clauses (d), (e) and (f). These clauses are so unclear that the head of the family which is a father or husband literally is left with no choice but keep quiet even if the wife or children continue to breach family polices and rules. Anyone can accuse another of behaving in a provocative manner as mentioned in Section 27. These should be justified before any order is made. The government should utilise the grants by constucting a family panel of advisors and counselors who receive the application first at the court registery and again relevant evidence should be presented in a form which is visible to the court.

The fourth and final arugement point by the author ensnares Section 32 which is related to the possessions of personal properties. When a legally wedded couple start a family, both work hard and build a house which they call a home and once such cases emerge then the male is the one who is left with nothing as the wife takes everything which leaves the husband and father being subjected to humiliation and degradation in the society. It takes two to tango and the courts should consider every avenue before furnishing the applicant with a restraining order.

In conlusion, the author reiterates that laws when in its construction stage should be viewed, applied and defined from all aspects prior to enforcement without which that day is not long when we humans shall murder the future of our country with our own hands. Each family has its own rules, values, culture and traditions which ought to be respected and abided by. Hense the author has attempted to provide argument points with remedies accordingly for each point. The mentioned points with its remedies; prooves that the Domestic Violence Decree 2009 as imbiguous, fundamentally insufficient and the destructive result of such legislation in Fiji.