COUNTRY REPORT: THE REPUBLIC OF THE FIJI ISLANDS
Aliti Kiji Choi Bavou*
I. INTRODUCTION
The seriousness of a country’s desire to eradicate corruption can be judged by the laws it passes and theactions of its government in implementing them. It has been suggested that the fight against corruption iscomposed of three elements – an effective anti-corruption legal infrastructure, international partnerships formutual legal assistance and the political will to make it work.
Fighting corruption in an effective and sustainable manner firstly requires a country to look inwards at
the fundamental causes of corruption in its society. This will allow the design and implementation of anational anti-corruption programme that is tailored to suit the circumstances of a particular country and thatis sufficiently flexible to cover and deal with the full range of corruption occurring or likely to occur within
its society. Secondly the implementation of anti-corruption measures will need a firm commitment fromgovernment, the private sector and civil society.

II. TREND, CRIMINAL SITUATION OF CORRUPTIONOver the past two decades Fiji has had a spate of instances of mismanagement of public funds highlighted
by the media. Allegations of government corruption and of judicial impropriety went to the very heart oftransparency and good governance in Fiji.
Although Fiji has long felt the impact of corruption since independence, the political will to address it has
been a more recent development largely due to the high incidences of bribery and corruption in the public
sector in recent times.
In the late 1980s the National Bank of Fiji (NBF) saga set the tone for the number of ministerial
investigations, inquiries or audits, which highlighted bribery and corruption in what was one of Fiji’s largest
financial scandals in decades.
The NBF was established as a government-owned commercial bank in 1976. Four years after the 1987
Coup, the NBF introduced new services, trebled staff (mainly indigenous) and quadrupled advances mainly
to indigenous Fijians, where the lending criteria favoured privileged groups. By 1996 NBF’s bad and doubtful
debts were estimated to cost the country about $200 million dollars - a debt that was taken over by thegovernment of Fiji causing much bitterness in a small ethnically divided nation. Those who carried the tax
burden were not necessarily the same persons who benefited from the poor quality of lending.
More recently the Ministry of Agriculture lost thousands of dollars under its Agricultural Affirmative
Action Plan for indigenous Fijians and Rotumans. The Ministry implemented the affirmative action plan in2000 for indigenous Fijians and Rotumans to enhance their participation in agriculture. The audit
investigation revealed that there was no system of authorization, lack of forecasting and planning, poor
channels of communication and co-ordination and no means of performance monitoring and control. The
audit noted that there were no standard selection criteria or documented procedures for selecting farmers
for assistance and for monitoring them after assistance was provided. In the majority of cases, thePermanent Secretary, the Deputy Secretary and/or the Principal Accounts Officer approved the applications
without any technical assessment and evaluation by experts in the field located in various districts. Therewas much evidence of uneconomic purchases by the Ministry. No quotations were obtained and theinvestigation revealed that the majority of purchases were made from a single supplier whose prices on
average were twice as much as in other hardware shops. The audit found that the Ministry acquired goods
and services without issuing local purchase orders requiring authorization/approvals at different levels, andliabilities committed through such irregular practices ran in millions of dollars. This irregular practice isviewed as a deliberate attempt by the Ministry, particularly the Principal Accounts Officer, to violate
standard Government procurement procedures, thereby opening avenues for abuses. The special audit
further revealed that some local purchase orders issued to suppliers were open, leaving room for* Senior Legal Officer, Director of Public Prosecution Office, Fiji.

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manipulation by the supplier and/or the farmer, a practice contrary to the accepted procedures. The audit
further noted that no stock registers were maintained for receipts books, cheque books, purchase orders andrequisitions as they were sent direct to the divisions and centres by the printer, thus escalating misuse offunds. Finally, evidence exists to support purchases of items not covered by the plan (for example thepurchase of lap top computers, fax machines, generators, air compressors, spray guns, etc.). Investigations
are continuing with four senior civil servants and a businessman charged with fraud and corruption related
offences.

III. POLITICAL WILLIn 1999 the People’s Coalition Government was elected into office. Their manifesto promised agovernment that would be clean, open, accountable and just.
Several measures were proposed in this manifesto, which included;(i) Legislating a code of conduct for politicians, government ministers and other holders of high public
office to ensure accountability and transparency(ii) Enacting a Freedom of Information Act, a requirement of the Constitution and(iii) Establishing an independent anti-corruption commission
The Attorney General at that time Hon. Anand Singh instituted the Fiji Law Reform Commission, which
was referenced to inquire into fraud, bribery and corruption. The main aim of the reference was firstly togauge the nature, extent and scale of corruption in Fiji through wide consultations with various levels of thecommunity, institutions, non-governmental organizations (NGOs) and private individuals, and secondly toreview the current laws on corruption and the role of the “watchdog” institutions with a view to making
appropriate recommendations to better prevent and combat incidents of corruption.
This paper will reflect on the findings of the Fiji Law Reform Commission’s Bribery and Corruption
Report 2003, which was tabled in Parliament in November 2004.

IV. PERCEPTIONS OF CORRUPTION IN FIJI
The Law Reform Commission relied heavily on a report compiled by the Fiji Chapter of Transparency
International (TI - Fiji Chapter- Report], which highlighted perceptions of corruption in Fiji. These reports
were independently confirmed by the numerous submissions received by the Commission during its public
and private hearings.
The following are a summary of incidents of corruption highlighted in the TI (Fiji Chapter) Report.
1. Kickbacks
In the Immigration Department in the issuance of passports and work and residency permits.
2. Greasing the Palms
In the Land Transport Authority (LTA) involving the issuance of driving, minibus and taxi licenses and in
the certification of motor vehicles for roadworthiness; and in the Fiji Islands Revenue and Customs
Authority ( FIRCA), in tax assessments and its enforcement.
3. Nepotism
In the appointment, recruitment and promotion of public officers within the public service and executivesof state owned entities.
4. Rank Pulling and Queue Jumping
By well connected businessmen, traditional leaders and politicians
5. Unethical Decisions on Public Procurement and Government Contracts
Such as hiring of transportation and earth moving equipment for major public projects.

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6. Misuse/Abuse of Public Funds
In the claiming of allowances and in the issuance of Local Purchase Order (LPOs). As highlighted in the
Auditor General’s reports to Parliament.
7. Organizational Values
These include shared assumptions, beliefs and attitudes held by staff towards corruption and corrupt
activities which affect and influence the degree and extent, to which such illegal practices are tolerated andexposed
Bribery and corruption by their very nature are activities that occur in secret. Access to official
information is also limited and there is strong reluctance in Fiji to report such instances that individuals may
have witnessed. Furthermore, mechanisms or legislation to protect “whistleblowers” (i.e. those who havealerted authorities) are non-existent in Fiji thereby reinforcing the culture of silence.

V. RELEVANT AGENCIES AND INSTITUTIONS, AND THEIR JURISDICTIONSFiji currently does not have an anti-corruption agency. All criminal investigations are carried out by the
Fiji Police Force through its Criminal Investigation Department. Within the department an Anti-Fraud Unit
has been established which investigates fraud and corruption related offences.
The Director of Public Prosecutions Office
The office of the Director of Public Prosecutions has been in existence for over 35 years. In Fiji, unlike
most other similar jurisdictions, the Office enjoys a constitutional guarantee of independence. This is areflection of the importance of the Office in the maintenance of law and order and the achievement of good
governance in the State.
The office of the DPP, where appropriate, prosecutes criminal cases following an investigation by thepolice or other prosecution agencies.
Under the Constitution the DPP may:(i) institute and conduct criminal proceedings;(ii) take over criminal proceedings that have been instituted by another person or authority; and(iii) discontinue at any stage before judgment is delivered, criminal proceedings instated or conducted by
the DPP or another person or authority.
Sanction of the Director of Public Prosecutions is required pursuant to section 379 of the Penal Code forthe prosecution of a corruption related offence.

VI. EXISTING LEGISLATION & ASSOCIATED PROBLEMS
The primary source of criminal law in Fiji is found in the Penal Code. The rules that apply to issues ofcriminal procedure are contained in the Criminal Procedure CodeIn the absence of a stand-alone legislation for corruption, the key statutory provisions are contained in
two chapters of the Penal Code. Chapter 11 titled Corruption and Abuse of Office and Chapter 40 titled
Secret Commissions and Corrupt Practices.
In its enquiries the Commission received numerous generalized submissions that anti-corruption
provisions contained in the Penal Code were deficient and outdated. After careful consideration theCommission formed the view that with the exception of two offences namely Abuse of Office and Official
Corruption, the other offences in the Penal Code were rarely, if ever, investigated or charged by the police or
DPP’s office.
The most widely known section is section 106 of the Penal Code, which relates to persons employed in
the public service
Section 106 states:
Any person who

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RESOURCE MATERIAL SERIES No.71(a) Being employed in the public service and being charged with the performance of any duty by virtueof such employment corruptly asks for, solicits, receives or obtains or agrees or attempts to receiveor obtain, any property or benefit of any kind for himself or any other person on account of anythingalready done or omitted to be done or to be afterwards done or omitted to be done, by him in the
discharge of the duties of his office; or(b) Corruptly gives, confers or procures or promises or offers to give or confer or to procure or attempts
to procure to upon or for any person employed in the public service, or to upon or for any person orproperty or benefit of any kind on account of any such act or omission on the part of the person so
employed,Is guilty of a felony and is liable to imprisonment for seven years.
In State v Humphrey Chang HAC No 8/91 Jesuratnum J. stated that the prosecution must prove twoelements to establish an offence of official corruption; These are1.
2.

That the accused being employed in the public service received some “property” or “benefit” fromsome person; andThat the “benefit” or property was received “on account of” or in consideration for something doneor omitted to be done by the accused in the discharge of his duties

In State v Seruveveli Aisake Criminal Appeal No 6 of 1993 Fatiaki J. stated“It is not merely enough to prove that a favour had been shown by a civil servant in the discharge of
his duties or that a benefit or property had been received by the civil servant, additionally it must be
shown that the two elements are so linked in time and circumstances as to give rise to an irresistible
inference that the transactions was a corrupt one…. Needless to say it does not in my viewnecessarily follow that every payment or benefit conferred on a civil servant outside office hours is
unlawful per se. It is only unlawful, if there is a link between the payment and him doing somethingin pursuance of his public duty. The reward must relate to something done or omitted to be done inrespect of a matter in which his employer is concerned. In other words the offence of official
corruption lies not in showing favour to someone but rather in accepting a reward for doing so.”Section 107“Any person who being employed in the public service, takes or accepts from any person for the
performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any
promise of such reward is guilty of a misdemeanour and liable to imprisonment for three years.”This section criminalizes the mere acceptance of any reward for the performance of his duty without
requiring proof of the existence of any official connection between the civil servant and the person giving the
reward.
Section 375 of the Penal Code375(1) For the purpose of this Chapter, the expression consideration includes valuable considerationof any kind; the expression “agent” includes any person employed by or acting for another; and theexpression “principle” includes an employer.
(2) A person serving under the [State] or under any town council or under any other public bodyhaving power to impose rates or entrusted with the expenditure of any Government funds or
grants, and a member of any such town council or other public body, is an agent within themeaning of this Chapter.
Section 376 If(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any
person, for himself or for any other person, any gift or consideration as an inducement for
reward for doing or forbearing to do or for having done or forborne to do, any act in relation tohis principal’s affairs or business or for showing or forbearing to show favour or disfavour to any
person in relation to his principals affairs or business; or(b) Any person corruptly gives or agrees to give or offers any gift or consideration to any agent as

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an inducement or reward for doing or forbearing to do, of for having done or forborne to do, any
act in relation to his principal’s affairs or business, or for showing or forbearing to show favour
or disfavour to any person in relation to his principal’s affairs or business; or(c) any person knowingly gives to any agent, or if any agent knowingly uses with intent to deceive
his principal, any receipt or other document in respect of which the principal is interested, andwhich contains any statement which is false or erroneous or defective in any material particularand which to his knowledge is intended to mislead the principal,
He is guilty of a misdemeanour and is liable to imprisonment for two years or to a fine of six hundred
dollars.
Section 378
Presumption as to Corrupt Practices
378. Where in any proceedings against a person for an offence under this Chapter it is proved thatany money, gift or other consideration has been paid or given to or received by a person in theemployment of the State or any Government department or a town council… or other public bodyhaving power to impose rates or entrusted with the expenditure of any Government funds or grants,
by or from a person or agent of a person holding or seeking to obtain a contract from the State or any
Government department or town council or other public body having power to impose rates, themoney, gift or consideration shall be deemed to have been paid or given and received corruptly as
such inducement or reward as is mentioned in this Chapter unless the contrary is proved
Chapter 40 offences have a wider scope, which extends to the private sector as well as statutory bodies
and local government officials

VII. CURRENT PROBLEMS AND MOVES RELATING TO CORRUPTION IN FIJI
A. Legislation(i)
The drafting style is complex, difficult to understand and analyze. Provisions are scattered in the
Penal Code.
(ii)
There is a clear identify between section 376 offence and s.106 offences which could give rise to
duplicity.
(iii)
The broad concept of corruption should be the key issue borne in mind rather than the narrow
manifestation of bribery.
(iv)
Section 106 is limited to bribery situations and does not cover nepotism, queue jumping and“kerekere” (Fijian term for borrowing or asking).
(v)
The scope of corruption in s.106 is limited in that an act which does not link the benefit to theofficial act is not corrupt. The core of section 106 is the link between the “benefit”, “reward” andthe “act” the requested mens rea must relate to the receivers knowledge or belief as to theexistence of the link.
(vi)
The distinction between public officer and non-government officer should be abolished and thelegislation should adopt a more neutral description such as agent or person.
(vii) There should be a single generic term or expression to replace the variety of expressions to befound in the Penal Code, which refer to the corrupt transaction. Section 106 uses the expression“any property or benefit of any kind” Section 107 uses the expression “reward beyond his proper
pay and emoluments”; and Section 376 uses the expressions “gift” and “considerations”.
Arguably these definitions do not include sexual favours or future promises to process favourable
tax returns, for example.
(viii) Cultural exceptions. The giving of and receiving of gifts and valuable benefits is a common
occurrence in many areas of business and arguably is traditional to Fijian culture and protocol.
Queue jumping the “who you know” syndrome and helping people from your own family orprovince are all real problems in Fiji. There is a strong public interest in enacting laws which
prevent public officials from showing any kind of favour at all whether it is for personal gain or not.
B. Problems and Solutions at the Investigative Stages
In Fiji the police are primarily responsible for all criminal investigations but the consent of the Director of117

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Public Prosecutions is required for the prosecution of certain criminal offences, including corruption. The
DPP may request the police to investigate suspected criminal offences but it cannot order the police to doso. The Director of Public Prosecutions has no authority to direct or supervise police investigations because
the independence of the Police Commissioner in operational matters is constitutionally protected. Even in
those cases where the decision to charge an accused person requires the prior consent of the DPP thedecision is inevitably coloured by the quality of the police investigation.
Financial scams over the years have undoubtedly shaken public confidence in the police and otherregulatory institutions to effectively investigate and punish those at fault. Apart from the difficulties with thelegislation, there are concerns about the lack of skills and resources in the police force for investigating
crimes of serious fraud and corruption
The very nature of the crime of corruption makes any investigation very difficult.
1. A Secret Crime
Each corrupt transaction involves at least two parties. The person who offers the bribe and the person
who accepts the bribe. Both derive mutual benefit. Corruption therefore involves secrecy and concealment
making it difficult to detect.
2. A Crime that Leaves No Trace
Unlike other crimes there is no obvious crime scene where the perpetrators of corruption effect thecommission of an offence. With new technology there is no need for the corrupt to meet.
3. A Victimless Crime
There is usually no identifiable victim.
4. A Culture of Silence
A further aspect making it difficult to investigate is the pervasive ‘culture of silence’ in Fiji. Where
patronage is tied to family race and culture, silence is said to be the golden rule. A culture of silence provides
a perfect medium for corruption to take hold and flourish.
5. Gathering Evidence
Government must be willing to consider granting special powers to investigating authorities to enhancetheir operational effectiveness. However, granting special powers of investigation can be a sensitive issue inFiji due to certain constitutional provisions e.g. electronic surveillance may encounter problems with s.
37(1) of the Constitution “the right to privacy of personal communications”.
Society must decide where the right balance lies between competing interests.
6. Undercover Operations
With the relatively small population of Fiji with almost limitless extended relationships and acquaintancesamongst its people, there seems to be little opportunity to undertake undercover operations with any
guarantee of success.
7. No Whistlblower Legislation
The investigation of corruption and fraud related matters are greatly assisted with two pieces oflegislation The Proceeds of Crime Act 1997 which allows for restraint and confiscation proceedings to betaken against a person accused of a serious crime who has fled Fiji. The Act also allows us to assist anothercountry by restraining the disposal of a criminal’s property found here and to enforce an order made by theforeign country for the confiscation of the property or to take proceedings in our courts against suchproperty. The Mutual Assistance Act is generally resorted to in an effort to obtain admissible evidence of acrime that has been committed and facilitates the enforcement of a forfeiture order made under theProceeds of Crime Act in a foreign country with whom we have an agreement and vice versa. It is carriedout under legislation and bilateral or multilateral treaty.

C. Problems and Solutions at the Trial Stage
1. Impediments to prosecution include procedural delays as well as evidential hurdles during the trial.

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Recently the Criminal Procedure Code has been amended effectively removing the need forPreliminary Inquiries, which was seen to be the cause of inordinate delay in proceedings.
2.

There are several evidential problems relating to these sections. The use of the word “corruptly” insection 106 and 376 is not defined by statute. It is suggested by the Law Reform Commission thatrather than attempting to define the word corrupt, the law would be better served by presuming thatcertain types of behaviour are presumptively corrupt and thereby shifting the onus to disprove it on
the accused who would be the best person able to discharge the evidential burden.

3.

In most cases the main witness in a corruption case is an accomplice, who either took or received
the bribe. As a rule of practice, a corroboration warning must be given. In many jurisdictions thisrule has been abolished in favour of a general judicial discretion to warn the assessor about the lackof reliability of evidence in a particular case.

4.

One of the most prominent hurdles to successful prosecution is the reluctance of witnesses totestify; this could be due to the “culture of silence’ or the misguided sense of loyalty not to theinstitution but to employers.

5.

Lack of expertise of prosecutors dealing with corruption cases.

VIII. SOLUTION? ESTABLISHMENT OF AN INDEPENDENT ANTI-CORRUPTION AUTHORITY
The difficulties in investigating and proving corruption have led many jurisdictions to create special
independent bodies to investigate and in some instances, to prosecute corruption and fraud.
The Commission recommended that an Independent Anti-Corruption Authority be established byseparate legislation and that such legislation include the following minimum features.
-Be multifunctional, investigating, educating and prosecuting
Be subject to independent review
In the exercise of its investigative powers the Authority should be subject to the sanction of the DPP
Legislative provisions include comprehensive powers of investigation and aids to prosecution
That there be legislative protection of informants and whistleblowers
That the legislation contains offence provisions.

IX. OTHER INITIATIVES BY THE GOVERNMENTIn the Asia-Pacific region, twenty one countries, including Fiji, expressed their commitment to fightcorruption by endorsing an anti-corruption action plan within the framework of the ADB/OECD AntiCorruption Initiative for Asia and the Pacific. The Action Plan comprehensively promotes the regions
objectives and needs for reform to develop effective and transparent systems for public service tostrengthen anti-bribery initiatives, to promote integrity in business operations, and to support citizen’s
involvement.
Since 2003 the following anti-corruption policies have reportedly been in place in the Fiji Islands.
(i) Reform of the public service, which is currently taking place in Fiji by establishing a system ofgovernment hiring of public officials that assure openness, equity and efficiency and promotes hiringof individuals at the highest level.
Establishing ethical and administrative codes of conduct that prescribe conflicts of interest, ensure
the proper use of public resources, and promote the highest levels of professionalism. Includes therequirement for public officers and other employees to disclose annually their earnings on
investment, properties and from any other source.
Safeguard accountability of public service through effective frameworks, management practices, andauditing procedures. Ministries and departments are required to prepare corporate plans, submit
their annual budget estimates for approval by Parliament through the Minister of Finance and tocompile their annual reports at the end of the year.

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RESOURCE MATERIAL SERIES No.71(ii) A Financial Intelligence Unit (FIU) has been formed under the Financial Transactions Reporting Act.
The Ministry of Justice, the Reserve Bank of Fiji, the Director of Public Prosecutions and the Fiji
Police Force signed a memorandum of agreement (MOA) on 14/06/03 to establish a formal Unit. Thiswas done in response to Fiji’s obligation under the UN Special Resolution and recommendations of
the Financial Action Task Force (FATF), the international standard setting body in the area ofcountering money laundering and the financing of terrorism. The FIU is responsible for receiving,
analysis and disseminating to the relevant law enforcement authorities suspicious transaction
reports and other financial information concerning suspected proceeds of crime and other related
serious offences. This year there were 100 suspicious transactions report.
(iii) The Ministry of Justice is currently reviewing legislation to strengthen and effectively combat theoffence of bribery of public officials. Under review are The Charitable Trust Act, The Companies Act
and the Religious Body’s Registration Act.
(iv) Encouraging public discussion of corruption. There has been increasing public awareness ofcorruption evident by media reports and the support of non-governmental organisations, including
Christian denominations. The commercial banks have made an undertaking with the Reserve Bankof Fiji that they will inform them of any unusual or suspected transaction.

X. CONCLUSION
Although corruption as a legal concept is usually limited to situations of the exchange of gifts for favours,
the real dilemma is to create a society which is hostile to a wide range of politically improper conduct. The
abuse of office, nepotism, the acceptance of gifts or sexual favours are examples of corrupt behaviour in thewider sense.
The challenge for Fiji is to provide a climate, which is intolerant of this wider definition of corruption.
The tools for this challenge are a strong political will, firm leadership, the development of codes of conduct,
establishment of an independent commission against corruption, a free and fair media and good accounting
practices. Together these measures and institutions can help to create a social and cultural will to combat
corruption.

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