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SUVA, Fiji (Fiji Times, June 22) – The Fiji Human Rights Commission has found that the Government's affirmative action program under the Social Justice Act 2001 is unconstitutional.

If the Government does not bring the programs within the requirements of the Constitution, proceedings could be instituted in the High Court for a declaration that the Act and policies are invalid.

An investigation was conducted by the commission after complaints were lodged by the Fiji Labour Party, Citizens Constitutional Forum and the Fiji Teachers Union.

The report noted that many activities under the program involved preferential use of government resources, particularly budgetary resources, in favour of indigenous Fijians.

Citing an example, the commission said FJ$20 million [US$11.4 million] was given to Fijian Holdings Limited via the Fijian Affairs Board on an interest free basis, which was subsequently converted into a grant in the blueprint.

"Whereas the cost to the taxpayer of the original loan was the opportunity cost of the capital, the effect of the conversion to a grant was, effectively, to transfer $20million of taxpayers funds to the indigenous community, since, despite the creation of a new class of shares in FHL recently, decision making and beneficial ownership at the company remains in indigenous hands."

It said all aspects of the blueprint needed to be examined by the Government to determine whether they should be brought under the Social Justice laws of the country.

The programs, the commission said, failed to make provisions for all who were disadvantaged, particularly Indians, women and other disadvantaged groups.

The report noted an absence of data that related to whether alleged disparities between Fijians, Rotumans and Indians have reduced in the areas where these programs have been introduced.

The commissions says the Government's principal justification for its affirmative action programs that the rural sector is poorer than the urban sector and that most Fijians live in rural areas is seriously flawed.

In fact, the poorest households in rural areas are Indians, the report says.

"The Government's other main justification (that the average income of indigenous Fijians is below that of Indians and Others and therefore all indigenous Fijians are disadvantaged and entitled to affirmative action) does not meet the legal standards imposed by the Constitution, the Human Rights Commission Act and international law."

June 22, 2006

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