Homosexuality has been decriminalised by the Crime Decree which came into effect at the beginning of the month.
Former High Court judge Nazhat Shameem has clarified that unlike the Criminal Penal Code which had sentences and punishment set aside for sodomy and unnatural offences, there were no such provisions in the Crime Decree.
"So what has happened is that homosexuality has been decriminalised making people of the same sex to engage in sexual practices as long as both parties are consenting to it," Ms Shameem said.
She added that in 2005, during a High Court ruling, Justice Gerard Winter in the appeal of Thomas McCosker's case, an Australian who visited Fiji and was arrested, tried and sentenced to two years jail for sodomy, ruled that the act of sodomy should not be contained in the laws of Fiji as the nature of the sexual activity was consensual.
"The Crime Decree has brought forward what Justice Winter ruled," Ms Shameem said.
"It can be said that the McCosker case was the precedent for the change in laws."
The Crime Decree was put in place to replace the Criminal Penal Code which was considered to be archaic and not in tune with the changing times. Under the sexual offences provisions in the Crime Decree, the only time homosexuality is considered a crime when there is sex without consent therefore suggesting rape.
The new laws, unlike the Criminal Penal Code, does not include women as victims but persons and incorporates all ways in which a person can be violated.
The Public Order Act, which was put in place by the Government to control incidences of instability, still empowers the law enforcers to arrest people who behave indecently in public.
Ms Shameem added that the public order act is the same for homosexuals and heterosexuals and the law clearly defines that anyone caught in indecent behavior is liable for prosecution.
Decriminalising of homosexuality also should not be seen as a leeway for male prostitutes, the Crime Decree is harsher on prostitution than its predecessor.