IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW HBJ No. 40 OF 2008

BETWEEN:

STATE

AND:

PIO TIKODUADUA, PERMANENT SECRETARY FOR JUSTICE, ELECTORAL REFORM, PUBLIC ENTERPRISES AND ANTI-CORRUPTION
FIRST RESPONDENT

AND:

PUBLIC SERVICE COMMISSION
SECOND RESPONDENT

AND:

HUMAN RIGHTS COMMISSION
AMICUS CURIAE

EX PARTE:

LESILI TUIWAWA
APPLICANT

Appearances:
Mr A. Roche & Ms A. Tavo for the Applicant
Ms M. Rakuita for the Respondents
Dr S. Shameem for Proceedings Commissioner as Amicus Curiae

Dates of Hearing: 17 November 2008, 26 November 2008
Date of Judgment: 10 March 2009

JUDGMENT (No 2)

Leave for judicial review refused (Judgment No 1); Requirement not to depart jurisdiction; Requirement not to enter workplace; Constitution ss 21, 23, 34, 140; Freedom of liberty; Freedom of movement; Lawful limitations on right of liberty/freedom of movement; Limitation must be ‘reasonable and justifiable in a free and democratic society’; Onus on state to establish ‘reasonable and justifiable’; Proportionality principle; Holder of public office; Reasonable suspicion of having committed offence; Reasonable restriction on freedom of movement; Public interest; Role/function of Public Service Commission (PSC); Public Service Act 1999 ss 18, 20, 32; Public Service Regulations 1999 ‘Part 5 – Discipline’; Public Service Commission, General Orders 1993, May 1993; ‘General Order 729 – Applications to Travel Overseas’; Status of ‘General Orders’; Need for legislative clarity on freedom of movement limitation; Universal Declaration of Human Rights

Bull v. Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 (1 December 1913)
Chandra v. KK’s Hardware Ltd [2000] FJCA 21; ABU0011U.20 May 2000)
Fijian Teachers Association & Fiji Public Service Association v. Public Service Commission and Attorney-General (JudRev No. HBJ 3J of 2007S, 20 December 2007 Green v. Daniels [1977] HCA 18; (1977) 13 ALR 1; (1977) 51 ALJR 463 (15 April 1977)
Hunter v. Southam Inc. (1984) 11 DLR (4th) 641; 14 CCC (3d) 97; 2 CPR (3d) 1 [1984] 2 SCR 145
Irwin Toy Ltd v. Quebec (Attorney-General) (1989) 58 DLR (4th) 577; 35 CPR 93d) 417; [1989] SCR 927
R. v. Edwards Books & Art Ltd (1986) 35 DLR (4th) 1; 30 CCC (3d) 385; [1986] 2 SCR 713
McKinney v. Board of Governors of the University of Guelph & Ors (1990) 76 DLR (4th) 545
Tikoduadua and Public Service Commission; Ex parte Tuiwawa (No 1) [2008] FJHC 353; HBJ40.2008 (22 December 2008)
R. v. Oakes (1986) 26 DLR (4th) 200

1.	Introduction 

Heard on 17 and 26 November 2008, on 22 December 2008 the application by the Applicant, Lesili Tuiwawa, for leave for judicial review was refused: Pio Tikoduadua, Permanent Secretary for Justice, Electoral Reform, Public Enterprises and Anti-Corruption and Public Service Commission and Human Rights Commission; Ex parte Lesili Tuiwawa (No 1) (JudRev HBJ No. 40 of 2008, 22 December 2008) Made in respect of a decision of 27 August 2008 whereby the First Respondent, Pio Tikoduadua, Permanent Secretary for Justice, Electoral Reform, Public Enterprises and Anti-Corruption (the Permanent Secretary) suspended Ms Tuiwawa’s employment as a civil servant and the Official Receiver, refusal of leave was on the basis that the application was premature.

1.1	An aspect of the application was that in suspending Ms Tuiwawa, the Permanent Secretary directed that she not travel outside Fiji without permission and not enter her workplace. This raised a question under the Constitution as to Ms Tuiwawa’s right to freedom of movement.

1.2	Upon the Court’s invitation, the Human Rights Commission intervened as Amicus Curiae and, together with the parties, made submissions in respect of sections 23 and 34 of the Constitution.

1.3	Its being important to determine Ms Tuiwawa’s leave application promptly, judgment was delivered vis-à-vis leave without including reasons in respect of the ‘freedom of movement’ aspect. That initial judgment made clear that a determination and reasons on ‘freedom of movement’ would not affect the refusal of leave.

1.4	‘Freedom of movement’ is a fundamental constitutional right. In the context of Ms Tuiwawa’s application, it involves interaction of various constitutional provisions and domestic law governing public servants. This right, and the matters governing it, are addressed now. 

2.	Restrictions on Freedom of Movement 

By letter dated 3 July 2008 the Permanent Secretary wrote to Ms Tuiwawa directing that she go on leave (the First Letter). The First Letter stated amongst other matters:

During your period of leave you are directed not to leave Fiji without PSC’s approval not to enter the Official Receiver’s Office in Suvavou House, remove or destroy any official document: Annexure ‘A’, Affidavit 

2.1	The Permanent Secretary’s letter of 27 August 2008 advising Ms Tuiwawa of her suspension (the Second Letter), contained the following paragraph:

During your period of suspension you are not to leave Fiji without the prior approval of the Public Service Commission: Annexure ‘B’, Affidavit

2.2	Both the First and the Second Letter restricted Ms Tuiwawa’s freedom of movement in respect of her right to leave Fiji. The First Letter restricted her freedom of movement in respect of her place of work (Suvavou House). The restriction vis-à-vis the latter was absolute. That in respect of the former was conditional: her right to leave Fiji was bound by the requirement that if she wished to do so, she should seek and gain the approval of the Public Service Commission (PSC). The Second Letter refers to ‘prior approval’ whilst the First Letter refers simply to ‘approval’, however, this does not appear to make any substantive difference to the restriction.

3.	Constitutional Provisions & UN Human Rights Declaration

The Constitution is the supreme law of the Republic of the Fiji Islands, binding:

•	the legislative, executive and judicial branches of government at all levels: central, divisional and local; and

•	all persons performing the functions of any public office: s. 21(a), (b)

3.1	Section 21 of the Constitution (Amendment) Act 1998 provides that the rights and freedoms contained in Chapter 4 – ‘Bill of Rights’ – ‘apply according to their tenor’ being ‘subject only to the limitations under laws of general application permitted by’ Chapter 4 and ‘to such derogations as are authorised under Chapter 14’ - ‘Emergency Powers’.

3.2	All laws existing at the time the Constitution commenced, and all made after its commencement, along with post-Constitution administrative and judicial actions, are subject to the ‘Bill of Rights’ provisions: s. 21(3)(5) Further, the ‘Bill of Rights’ must be interpreted ‘contextually’ having regard to ‘the content and consequences of the legislation, including its impact upon individuals, groups or communities’: s. 21(4)

3.3	Provisions governing freedom of movement include section 23, as a basic provision affirming the right to ‘personal liberty’. Personal liberty can be limited in particular circumstances, generally relating to court orders or sentences in respect of conviction, or contempt of court, bringing persons before a court, etc and ‘if the person is reasonably suspected of having committed an offence’: s. 23(1)(e)

3.4	Then, section 34 applies specifically to freedom of movement, stating amongst other matters that every citizen has the right to enter and remain in the Fiji Islands and every citizen, together with every other person lawfully in the Fiji Islands, ‘has the right to move freely throughout the Fiji Islands and the right to leave the Fiji Islands’: s.34(1)(3) As with ‘personal liberty’, however, this provision, too, goes on to set down limitations:

(6)	A law, or anything done under the authority of a law, is not inconsistent with the rights granted by this section to the extent that the law:

(a)	… enables a restrain to be placed on the person’s movements, whether:

(i)	for the purpose of ensuring his or her appearance before a court for trial or other proceedings …

(f) regulates, controls or prohibits the entry of persons on to land owned or occupied by others.

(7)	 A law may limit, or may authorize the litigation of, the right of a person to freedom of movement:

(a)	…

(b)	…

(c)	For the purpose of imposing a restriction on the person that is reasonably required to secure the fulfilment of an obligation imposed on the person by law; or

(d)	For the propose of imposing reasonable restrictions on the holders of public offices as part of the terms and conditions of their employment,

but only to the extent that the limitation is reasonable and justifiable to a free and democratic society: s. 23

3.5	These provisions must be read consistently with the United Nations Declaration on Human Rights, where rights to liberty and freedom of the person are spelled out, along with a provision allowing for limitations, but making clear the parameters of any limitations:

Everyone has the right to … liberty …: Article 3

(1)	Everyone has the right to freedom of movement … within the borders of each state.

(2)	Everyone has the right to leave any country, including his own, and to return to his country: 

Article 13

(1)	Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2)	In the exercising of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3)	These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations: Article 29

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein: Article 30

3.6	The Public Service is not only bound generally by the Constitution, but is governed by specific provisions contained in Chapter 10 – ‘State Services’. These need to be taken into account in determining whether any limitation/s to freedom of liberty and/or freedom of movement imposed within the state service, by the Public Service Commission and/or (where having the authority) a head of department, etc, come within the parameters of sections 23(1) and/or 34(6), (7). 

3.7	Amongst other matters, management of state services ‘must be based’ on the principle that government polices are ‘carried out effectively and efficiently and with due economy’: s. 140(a) Functions of the Public Service Commission include the taking of disciplinary action against holders of public offices: s. 147(1)(c)

3.8	Most particularly in the present case, Ms Tuiwawa’s post as Official Receiver is subject to the limitations on freedom of movement under section 34(7)(d) for that post is a ‘public office’ and ‘an office in a state service’: s. 194 (‘Interpretation’)

4.	Domestic Law – Public Service Act & Regulations

It becomes necessary, then, to look to domestic legislation to see what limitations are comprehended vis-à-vis liberty and freedom of movement of public sector employees generally and holders of stipulated public offices in particular. The Public Service Act 1999 does not contain provisions explicitly governing either liberty or freedom of movement. However, it does provide for delegation of employment powers to chief executives of the various ministries and departments: ss. 16, 21 as well as enabling the making of regulations: s. 15

4.1	Like the Public Service Act, the Public Service Regulations 1999 make no particular reference to liberty or freedom of movement, nor to any limitation upon them. Albeit a regulation does refer to suspension, it does not provide any explicit basis for denial of entry to the workplace, nor as to seeking permission to leave the country:

Suspension from duty

23. -	

(1)	The Commission may suspend an employee from duty if the Commission believes that –

(a)	the employee has breached the Public Service Code of Conduct; and

(b)	the proper management of the employee’s Ministry or department may be prejudiced if the employee is not suspended.

(2)	The Commission may cancel a suspension at any time.

(3)	An employee suspended from duty under sub regulation (1) is not entitled to remuneration for the period of suspension.

(4)	The Commission may decide that an empl9yee who is suspended form duty is entitled to all or part of the remuneration payable for all or part of the period of suspension.

4.2	It might be supposed that if an employee is suspended from duty, then that contains within it the requirement that the employee not enter her/his place of work. However, it is questionable whether this conforms to what is required where a constitutional right is limited or sought to be limited. The Constitution requires specificity. ‘Suspension’ does not equal ‘limitation on liberty’ or on ‘freedom of movement’. Further, Regulation 23 does not cover the case where an employee is required to go on leave – as was so for Ms Tuiwawa – prior to any suspension.

4.3	In the absence of any regulation governing freedom of liberty or movement as in issue here, it is the Public Service Commission, General Orders 1993 Edition, May 1993 to which a public officer must turn for elucidation. Yet General Orders do not have the force of law. That is exclusive to legislation and regulations (delegated legislation): Green v. Daniels [1977] HCA 18; (1977) 13 ALR 1; (1977) 51 ALJR 463 (15 April 1977) For General Orders, there is no parliamentary debate (as with legislation) nor oversight (as with regulations). The Constitution requires a ‘law’ or something ‘done under the authority of a law’.

4.4	The General Orders do make clear that they must be read ‘with relevant laws’, ‘particularly’, amongst others, the Constitution and various promulgations of Public Service Regulations: General Order 102

4.5	Nonetheless, for such an important provision as that limiting liberty and freedom of movement – that is, the limitation of a constitutional right or rights, Parliament should play a key and supervisory role: that is, any such restriction or limitation should be subject to parliamentary scrutiny at least through the delegated legislation process. Indeed, it is bound to do so. Rights under the Constitution cannot be abridged other than by legislation or delegated legislation (at minimum). Those rights and freedoms cannot be limited by ‘General Orders’ (or policy directives) lacking a legislative base.

4.6	Provision was made in earlier regulations for a disciplinary offence of failure of any officer of the state service to obtain consent in writing from the Commission prior to leaving Fiji. Under Part V, Regulation 36(k) of the Public Service Commission (Constitution) Regulations 1990 stated:

An officer commits a disciplinary offence for the purpose of disciplinary proceedings who:

…

(k)	leaves Fiji without the consent in writing of the Commission; …

4.7	The 1999 Regulations repealed the Public Service Commission (Constitution) Regulations: 

31. The following Regulations are repealed-

(a) Public Service Commission (Constitution) Regulations 1990;

(b) Public Service Commission (Personal Grievance Procedure Regulations 1990;

(c) Public Service (Statutory) Regulations 1990.

4.8	Explicit provision was made preserving Regulation 36(k), but in relation to prior offences only:

Discipline

37. Part V of the Public Service Commission (Constitution) Regulations 1990 continues to apply to a disciplinary offence (within the meaning of those Regulations) committed before the commencement of these Regulations.

4.9	‘General Order 729’ upon which the Public Service Commission relies for the freedom of movement limitation provides:

Applications to Travel Overseas

729.	

(a)	All Officers wishing to leave Fiji for reasons other than official duties are required under Regulation 36(k) of the PSC (Constitution) Regulations 1990 to obtain the prior written approval of the Secretary for the Public Service.

(b)	

(i)	Applications must be submitted through the Officer’s Permanent Secretary or Head of Department whose comments and recommendations, plus all necessary documentation, should reach the Commission at least 23 days before the proposed date if departure.

(ii)	All applications must state the reason(s) for travelling abroad,

(iii)	Permanent Secretaries or Heads of Departments are to confirm whether an applicant is serving a bond or is a guarantor, whether the applicant has any loan obligations to Government, provide details of any debts the applicant owes Government and explain how the duties of the post will be carried out.

4.10	It is, however, doubtful that this General Order can rely upon the provision it cites for, as noted, that provision no longer subsists vis-à-vis current disciplinary offences. Regulation 39 of the 1999 Public Service (General) Regulations states:

Modification and adaptation

39. The Commission may give directions modifying or adapting any of the Regulations mentioned in regulation 31 by virtue of regulations 34 to 38 continue to apply after the commencement of these Regulations.

4.11	If this Regulation is relied upon as preserving Regulation 31(k) to be the foundation for General Order 729 this can follow only if, post the 1999 repeal of the Public Service Commission (Constitution) Regulations 1990 the Commission ‘gave directions modifying or adapting’ it so as to continue its application. If this is what the Public Service Commission intends, it needs to say so by ‘giving directions modifying or adapting it’. Or, better, the Public Service Commission should promulgate a Regulation explicitly clarifying the basis for the limitation. 

4.12	There appears to be no General Order relating to restrictions or limitations on travel (or movement) in circumstances where an officer is suspended from duty or required to go on leave in the circumstances applying to Ms Tuiwawa. Hence, the Permanent Secretary must have relied upon General Order 729 (despite its apparent lack of statutory authority or at least post-repeal preservation) and general provisions relating to efficiency and ‘good order’ in the state service along with the need to preserve discipline. 

4.13	It is important not to burden the Public Service Commission unnecessarily. However, it is not unnecessary, nor a burden, for the Public Service Commission to be obliged to ensure that its invoking of the constitutional power to limit the right of public office holders ‘as part of the terms and conditions of their employment’: s. 34(7(d) is legislatively based. This is, simply, what the Public Service Commission is constitutionally obligated to do, if limiting the liberty and freedom of movement of public sector employees. Notably, section 34(7) requires a law to ‘limit’ or ‘authorise the limitation of’ the right of such persons to freedom of movement. As noted, General Orders are not laws.

5.	State Justification for Limitation on Freedom of Liberty/Movement

As the constitutional provisions (together with the United Nations Declaration of Human Rights) affirm, the right to liberty and the right to freedom of movement are not absolute; they can be subject to limitations. However, any limitation is lawful only to the extent it is ‘reasonable and justifiable in a free and democratic society’: s. 34(7)

5.1	In the present case, justifications were advanced for the limitation upon:

•	Ms Tuiwawa’s freedom of movement; and

•	the freedom of movement of all state servants or public officers generally,

5.2	(a)	Freedom of Movement of State Servants/Public Officers: Insofar as freedom of movement of all state servants or public officers generally was in issue, it was said that efficiency, good order, good government and good governance require that servants and officers notify the Public Service Commission of their wish to travel abroad, seeking and obtaining consent before doing so, because:

•	It is necessary to be sure that the functions of government and of the particular department or ministry, etc will continue in a proper and effective manner, in an officer or servants’ absence;

•	Those going abroad may not return, and it is important to know in advance if this lies as a possibility, so that fair and effective arrangements can be made to cover this contingency;

•	Going on leave is one thing, but going abroad on leave is another – if some emergency or important issue should arise in that person’s absence, in relation to which they have information or where their presence or at least their communication may be necessary or even essential, there is an additional factor of being able to be in touch with the public officer without delay or undue burden: how to keep in touch.

5.3	(b)	Ms Tuiwawa’s Freedom of Movement: This involves two separate and distinct aspects – the requirement that she advise the Public Service Commission of her wish to go abroad and that she seek and obtain permission before leaving Fiji; and the requirement that she not enter her place of work.

5.4	As to the limitation on entry into her workplace – it is said that the need for continued investigation into financial and records management at the Office of the Public Receiver, Mr Tuiwawa’s entry should be limited or restricted. This it is said is necessary so that she not be in a position to interfere in the investigation, whether deliberately or inadvertently, or simply by her presence and its effect or possible effect on others in the workplace who may be or become involved in the investigation by reason of questioning, the need to provide documents, etc. This also follows as a means of ensuring that there can be no suggestion that she has or has had the opportunity to so interfere, whether deliberately or inadvertently.

5.5	As to the limitation on leaving Fiji – it is said that this is necessary so as to obviate the need to recall Ms Tuiwawa for participation in any investigation or answering to any charges that may be laid. Further, requiring a request and permission to go abroad does not put Ms Tuiwawa in any different position from any other public officer – nor indeed from the position in which she was prior to her suspension. Further, the requirement means that were Ms Tuiwawa to make such a request, then the Public Service Commission could consider it in the light of the existing circumstances and, in particular, determine whether permission should or should not be granted particularly in that it is not unknown for persons whose actions or activities are under investigation to leave the country so as not to have to answer to any charge, and not return to do so. To allow this would, it is said, militate against the responsibility of the Public Service and the Permanent Secretary in ensuring good governance and proper management and engagement with the disciplinary process.

5.6	Evaluation of these rationales needs to be done against the backdrop of authorities providing explication as to the meaning and application of ‘reasonable and justifiable’ in the context of limitations on rights and freedoms.

6.	Authorities - ‘Reasonable & Justifiable’

The Supreme Court of Canada has considered the interpretation of ‘reasonable and justifiable’ in a ‘free and democratic society’ in a number of cases. Counsel for the Respondents directed the Courts attention to McKinney v. Board of Governors of the University of Guelph et al and Eight Other Appeals; Attorney-General of Canada et al Interveners (McKinney v. Board of Governors of the University of Guelph & Ors) (1990) 76 DLR (4th) 545. and R. v. Oakes (1986) 26 DLR (4th) 200, as well as Fijian Teachers Association & Fiji Public Service Association v. Public Service Commission and Attorney-General (JudRev No. HBJ 3J of 2007S, 20 December 2007, a decision of the High Court which itself refers to Canadian Supreme Court authority.

6.1	The Court has also had reference to Irwin Toy Ltd v. Quebec (Attorney-General) (1989) 58 DLR (4th) 577; 35 CPR 93d) 417; [1989] SCR 927 and R. v. Edwards Books & Art Ltd (1986) 35 DLR (4th) 1; 30 CCC (3d) 385; [1986] 2 SCR 713. The principles espoused in all these decisions are valuable for assisting a determination of the position for Fiji.

6.2	(a)	Basic Interpretation of ‘Rights’: First, ‘rights’ legislation or provisions are beneficial or remedial; hence, they must be accorded a beneficial or benevolent interpretation: Bull v. Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 (1 December 1913), per Isaacs, J. The Bill of Rights in the Constitution must be interpreted accordingly. As was said in McKinney v. Board of Governors in relation to the Canadian Charter of Rights, the interpretation of such provisions ‘should be generous rather than legalistic’ and in ‘deciding what kind of criteria are relevant in interpreting’ terms … a purposive approach’ must be adopted: 

[W]hy does the Charter constrain the activities of government? 

… a historical review of the growth of the … state makes clear that those who enacted the Charter were concerned to provide some protection for individual freedom and personal autonomy in the face of government’s expanding role … I believe … that they considered it crucial to establish norms by which government would be constrained in performing the many roles it has assumed and will no doubt continue to assume. They sought to do this by setting out basic constitutional norms rooted in a concert for individual dignity and autonomy which government should be compelled to respect when structuring important aspects of citizens’ lives. The purpose of the Charter, then, … is to ensure that government action that affects the citizen satisfies these basic constitutional norms … Dickson, J. put the point well in Hunter [v. Southam Inc. (1984) 11 DLR (4th) 641; 14 CCC (3d) 97; 2 CPR (3d) 1 [1984] 2 SCR 145], at p. 649, when he made the following observation about the role of the Constitution:

Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties.

…: at 583, per Wilson, J.

6.3	This is appropriate for the Bill of Rights in the Constitution of Fiji: interpretation in accord with the principle of its being beneficent or remedial in content, meaning and application, providing a safeguard for the people collectively and as individuals against overreach by government. Judicial interpretation should favour expansive view of the rights. Then, where government seeks to restrict those rights, the question is how are courts to delimit provisions put forward by the legislature as conforming to the Constitution’s own indication that the rights are not absolute.
 
6.4	(b)	‘Justifiable’ Limitations – General: In R. v. Oakes (1986) 26 DLR (4th) 200 the Canadian Supreme Court said that where a limitation was invoked, the onus lies upon the party seeking its application to persuade the Court that it is ‘justifiable and reasonable in a free and democratic society’. The objectives of the law are the starting point: are they of sufficient importance to support the limitation of the particular right? Next comes the proportionality test: here, the objective of the limiting law must be balanced against the right, its nature and effect, and the extent to which the law limits that right. Also to be taken into account at that stage are other rights or policies the limitation seeks to advance. 

6.5	In McKinney v. Board of Governors of the University of Guelph & Ors (1990) 76 DLR (4th) 545 the Canadian Supreme Court said that this must not be a ‘mechanistic’ exercise, citing United States of America v. Cotroni (1989) 48 CCC (3d) 193; [1989] 1 SCR 1460; 42 CRR 101:

While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighted in a particular context against other values of a free and democratic society sought to be promoted by the legislature: at 218-19

6.6	In McKinney v. Board of Governors it was said that the question is whether the ‘impairment’ of the right in question is ‘minimal’ and to decide that:

… the court must determine whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible given its pressing and substantial objectives: at 546.

6.7	Does the policy or particular limitation in question meet that standard? Further, is the legislation in question ‘rationally connected to its objectives’?

6.8	Four ‘primers’ were set out by La Forest, J (at 648-51):

•	Objectives: what are the central objectives of the policy or policies sought to be advanced through the particular limitation of a right?

•	Proportionality: what is the means chosen to attain those objectives and is it proportional or appropriate to the ends – this measured itself against three criteria:

o	are the limiting measures carefully designed, or rationally connected, to the objective?

o	do they impair the right as little as possible?

o	do their effects not so severely trench on individual or group rights that the legislative objective, albeit important, is, nevertheless, outweighed by the abridgment of rights? (citing R. v. Edwards Books & Art Ltd (1986) 35 DLR (4th) 1; 30 CCC (3d) 385; [1986] 2 SCR 713, at 41, per Dickson, CJC)

•	Rationality: are the policies promoted by the limitation rationally connected to the objectives sought to be effected through the policies?

•	Minimal impairment: here, it is a question of whether there is minimal impairment to a constitutionally guaranteed right: ‘… it must be remembered that we are concerned here with measures that attempt to strike a balance between the clams of legitimate but competing social values’:

… in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck: citing Irwin Toy Ltd, at 625

6.9	Applying these principles to the present case, the focus must first be on the objectives as said to be attained in the rule that state servants and public officers must seek consent of the Public Service Commission to go overseas and, in respect of the limitations explicitly set on Ms Tuiwawa, what are the objectives sought to be attained in restricting her right of entry to her workplace and requiring her to notify the Public Service Commission and seek their consent to her going overseas should she wish to do so. The focus then turns to the means chosen to attain those objectives: it needs to be noted here that there is no blanket impairment or infringement of the right to liberty and freedom of movement vis-à-vis travel overseas: it is a matter of advising and seeking (and obtaining) consent, both for state servants and public officers in general, and for Ms Tuiwawa in particular. However, as regards entry to the workplace, the limitation is absolute: Ms Tuiwawa must not enter her place of work. Next, are the policy objectives rationally connected to the limitations? Finally, is their minimal impairment? That is, how has the balance been struck between competing, legitimate claims – here, in competition vis-à-vis entry to the workplace are the right of Ms Tuiwawa to enter her place of work, as against the right (and duty) of the Permanent Secretary and Public Service Commission to ensure that a thorough and proper investigation is conducted in light of the matters raised in the various audit, etc report/s. It may be said here, too, that Ms Tuiwawa has a right to a thorough and proper investigation also – for her right to fairness in regards to the potential charges that may be brought against her is fundamental also.

6.10	(c)	Determination of ‘Justifiable’ Limitation/s: It can be helpful to look at other fact situations where courts have grappled with the application of the aforesaid principles in determining whether a legislative limitation of a right comes within the parameters of acceptability where rights are in issue. That the rights and policy considerations in question are different does not detract from the value of the analysis applied by the court.

6.11	Hence, in Irwin Toy Ltd v. Quebec (Attorney-General) (1989) 58 DLR (4th) 577; 25 CPR (3d) 417; [1989] 1 SCR 927 the issue was whether restrictions on advertising directed to minors was ‘justified’. Advertisements were prohibited when targeting children. Under the Consumer Protection Act RSQ (c P-40.1) a judge had to decide whether an advertisement was aimed at the target group children by reference to:

•	the nature and intended purpose of the goods advertised;

•	the manner of presentation; and

•	the time and place of showing of the advertisement.

6.12	Advertisers complained those factors were ‘too vague’ and failed to provide the court sufficient guidance to make the required determination. Such ‘lack of guidance’ meant that the limit on advertisers’ freedom of expression was not ‘prescribed by law’ as required by the Charter. 

6.13	The Canadian Supreme Court decided otherwise, saying:

Absolute precision in the law exists rarely, if at all. The question is whether the legislation has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislator has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’: at 617, per Dickson, CJC, Lamer and Wilson, JJ

6.14	The Court went on to observe that, in that case, the Court was ‘called upon to assess competing social science evidence respecting the appropriate means for addressing the problem of children’s advertising. The question is whether the government had a reasonable basis, on the evidence tendered, for concluding that the ban on all advertising directed at children impaired freedom of expression as little as possible given the government’s pressing and substantial objective: at 626, per Dickson, CJC, Lamer and Wilson, JJ (Emphasis added)

6.15	Although the advertisers were able to show alternative means could be employed to deal with problems agreed to exist in children’s advertising, the Court in Irwin Toy Ltd said that this did not invalidate the right of the legislature to advance its policy in the way it had chosen. The Court held that none of the alternatives adequately accomplished the objective, considered reasonable, of protecting children from exploitation or manipulation through commercialism embodied in advertising. The Court said:

While evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups. There must nevertheless be a sound evidentiary basis for the government’s conclusion: at 629-30, per Dickson, CJC, Lamer and Wilson, JJ (Emphasis added)

6.16	To return to the present case, are there alternatives to the way in which the Public Service Commission might address and apply the policy objectives sought by the restrictions or limitations on liberty and freedom of movement of state servants and public officers, and Ms Tuiwawa? 

6.17	First, as to the entry to the workplace restriction, it appears to me that there is no alternative that would meet the concerns and objectives of the policy sought to be pursued. At the same time, if Ms Tuiwawa is to be subject to this limitation (as she is) there is good cause to ensure that the investigation is conducted as expeditiously as possible. It should be finalised without undue delay. This would be consistent both with Ms Tuiwawa’s right of liberty and freedom of movement, and her rights vis-à-vis the investigation and any possible laying of charges. It is also consistent with the responsibilities of the Permanent Secretary and Public Service Commission in ensuring good governance and the effectiveness of its approach to discipline: if there are matters to which Ms Tuiwawa must answer, these must be made known as soon as possible to the Permanent Secretary and Public Service Commission and to Ms Tuiwawa; if there are no such matters – the investigation indicates that there are none – then that too needs to be made known to the parties as soon as possible. Ms Tuiwawa’s absence from her workplace to ensure that this can be done would appear to be a valid encroachment on or limitation of her right under the Constitution. 

6.18	In saying this, it is acknowledged of course that premises owned or leased and operated under the auspices of an employer are not ‘open slather’ to employees. At the same time, the rights and conditions of employment presuppose that an employee does have access to her/his place of work in the general course. Further, such a restriction must be properly based in good reason or substantial, not fanciful, vague, indefinable or ill-defined, concerns. 

6.19	Secondly, as to Ms Tuiwawa’s liberty and freedom of movement, are there alternatives to the requirement that she notify and seek permission or consent of the Public Service Commission before she leaves the country, should she wish to do so? In circumstances where serious matters are raised in reports by responsible body/ies, and where there is a properly-based need for further investigation to determine any laying of charges, it seems appropriate to remind the person the subject of investigation of the rule applicable to all state servants and public officers. In the end, this was no new rule or limitation being applied to Ms Tuiwawa specifically: rather it was, as noted, a reminder of a rule or limitation already existing in respect of her, by reason of her holding the public office she fills. This difference will lie in the considerations taken into account by the Public Service Commission in addressing any request: for Ms Tuiwawa and those in her position, a factor will be that there is an ongoing investigation and that s/he has been required to go on leave or is on suspension. Whether the limitation is being applied consistent with the Constitution will be a question to be answered in light of all the facts of the particular case and the Public Service Commission’s response. What should be said, however, is that each request in such an instance should be considered upon its own merits and its constitutionality adjudged accordingly.

6.20	If there is or are alternative/s to the general rule applying to all state servants and public officers, it appears rational and legitimate for a rule to apply to a person in Ms Tuiwawa’s circumstance, namely as being the subject of serious matters raised going to financial and management affairs of her office and the need for (further) investigation. At the same time, expedition should apply: this cannot go on interminably - there must be a reasonable conclusion of any investigation, with charges laid, action taken, or Ms Tuiwawa advised that matters are resolved and no action is to be instituted. This again accords with Ms Tuiwawa’s rights and the rights and responsibilities of the Permanent Secretary and Public Service Commission – and the public interest and interest of the community as a whole.

6.21	Thirdly, as to state servants and public officers generally, it seems to me that there is a question whether there are alternatives to the present policy, or whether the objectives said to be embodied in the policy are sufficient to warrant the blanket requirement that notification must be made and consent in writing sought for travel overseas when a state servant or public officer is on leave or applies for leave. Is this truly warranted in a ‘free and democratic society’?

6.22	There was no evidence before the Court as to the origin of this policy, how long it has been in place, what the circumstances were when it was first devised and put into effect, etc. Sometimes, policies of government and large (or small) private sector bodies remain albeit their origin lies in a long-ago past, the rationale long-since forgotten and no longer contemporary. 

6.23	This may or may not be the case here. However, it may be that the Public Service Commission should review its policy to determine whether the objectives sought to be met are objectives that are necessary in all the circumstances. Travel abroad has become relatively easy in present times – air travel means that people can journey from place to place with not inconsiderable rapidity. Is it necessary for the Public Service Commission to know that its officers are abroad when they are on leave? Should the Public Service Commission be involving itself in what are, in the end, the private details of state servants and public officers as to their leave plans? Should the Public Service Commission have its time taken up in considering applications for consent to overseas travel and be obliged to spend its valuable resources in writing letters of approval? These are matters to which some consideration should be given.

6.24	Further, are good governance and assurance that an office will run smoothly in the absence of public officers measured by whether a person is or is not abroad? Arguably, if a public officer travels into a remote region within Fiji s/he may be less contactable than if s/he is abroad. If urgent matters need to be followed-up with a public officer, arguably this may be better and more readily done when the public officer is overseas in (say) a large capital city or populous centre rather than in a less well-populated and less well-serviced area of her/his home country.

6.25	As to the proposition that public officers may ‘disappear’ overseas not to return, finding employment elsewhere, in the end is the role of the Public Service Commission to ‘hold’ employees in their currently occupied positions despite job offers from elsewhere? Is it ultimately for the good of the public sector if employees are deterred from seeking overseas job opportunities? Many people return to their country of birth after study or employment overseas, bringing back new or enhanced skills, new knowledge and ways of working, and fresh ideas that can only enhance the operation of their home country’s economy and the public sector. Additionally, where the Public Service Commission’s policy appears to be one of ‘downsizing’, then voluntary departures from the ranks may be of assistance rather than the opposite. All these considerations require contemplation for the purpose of proportionality and rationality.

6.26	As for minimal impairment and the question of alternatives, in the end, may it not be sufficient for a state servant or public officer to leave contact details with their superior officer or line manager, so that if any emergency arises or need for recall to duty, they can be located – just as they would need to be located if they had not left the country. Mobile phones, e-mail and other internet and electronic means of communication mean contact overseas is no longer remote – indeed, it may be easier than contact within the country, depending upon where the state servant or public officer goes on leave.

7.	Legislative Base

Earlier, attention was drawn to the possible lack of a legislative base for the rule existing within the General Orders that state servants and public officers must gain written consent of the Public Service Commission before leaving Fiji for overseas travel. It also appears that there is no General Order nor regulation that specifically addresses the restriction of an employee’s access to their place of work in circumstances as here, where serious matters of a financial and management nature have been raised and an investigation is ongoing. 

7.1	In R. v. Edwards Books & Art Ltd (1986) 35 DLR (4th) 1; 30 CCC (3d) 385; [1986] 2 SCR 713, it was said that courts should avoid a ‘too abstract, too theoretical, approach to constitutional interpretation’: at 67, per La Forest, J His Honour recalled this in McKinney v. Board of Governors of the University of Guelph & Ors (1990) 76 DLR (4th) 545, saying that the Constitution ‘must be applied on a realistic basis taking account of the practical, living facts to which legislation is addressed’: at 674, per La Forest, J

7.2	There is nothing remarkable in this. 

7.3	But the Constitution must be applied so that its provisions are taken into account as written. The restrictions on liberty and freedom of movement of state servants and public officers are allowed by reason of section 34(7)(d) in its reference to the ‘imposition of reasonable restrictions … as part of the terms and conditions of … employment’. That this is a constitutionally allowed limitation does not mean that the lack of existence of a legislative base for the limitation does not matter. It does. Nor does it mean that a legislative base can be supposed although there is no explicit reference to the particular right or freedom purportedly limited or restricted. 

7.4	The Respondents further rely upon section 173(1) of the Constitution in its provision that a commission (including the Public Service Commission) may by regulation make provisions regulating and facilitating the performance of its functions: s. 173(1) and that:

In the performance of its functions or the exercise of its powers, a commission is not subject to the direction and control of any other person or authority, except as otherwise provided by this Constitution: s. 173(4)

Nothing in sub-section (4) limits the responsibility of the Government for the structure of the public service of… nor the Government’s general policy responsibility for the management of the public service …: s. 173(5)

In addition to the functions conferred upon it by or under this Constitution, a commission has such powers and other functions (if any) as are prescribed: s. 173(6)

7.5	There is no dispute but that the Public Service Commission has the power to make regulations under these provisions: Fijian Teachers Association & Fiji Public Service Association v. Public Service Commission and Attorney-General (JudRev No. HBJ 3J of 2007S, 20 December 2007 This does not mean, however, that:

•	It can make General Orders beyond the base of legislative or delegated legislative power or in the absence of legislation or delegated legislation;

•	It can make regulations that do not conform to the provisions of the Constitution – namely the rights and freedoms set out in the Bill of Rights;

•	It can make regulations purporting to effect limitations allowed under the Constitution Chapter 4 – ‘Bill of Rights’ – that do not conform to the requirements as set out in the authorities herein cited.

7.6	As was said in Fijian Teachers Association & Fiji Public Service Association, and as the Constitution requires, any limitation must be ‘only to the extent that the law is reasonable and justifiable in a free and democratic society: at 12, per Jitoko, J. There, His Lordship cited with approval what was said by the Canadian Supreme Court in R. v. Edwards Books & Art Ltd (1989) 35 DLR (4th) 1, referred to earlier:

Two requirements must be satisfied that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a ‘pressing and substantial concern’. Secondly, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement in turn, normally, has three aspects: the limiting measures must be carefully designed or rationally connected to the objective; they must impair the rights as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights: at 41; cited in Fijian Teachers Association & Fiji Public Service Association, at 17, per Jitoko, J (Emphasis in Fijian Teachers Association & Fiji Public Service Association)

7.7	Emphasis was also laid upon the Canadian Supreme Court analysis that relevant factors are the objective of the limitation or policy, etc applying the limitation, and the availability of alternative means: at 18 In Fijian Teachers Association & Fiji Public Service Association (in regard to the retirement age of state servants or public officers) it was considered that there was no alternative or no available alternative means. That is not the case here, in respect of the general rule applying to state servants or public officers, or at least there is room to explore alternatives or alternative means of attaining the objectives put forward by the Public Service Commission in justification of the limitation.

7.8	In the present case, this does not effect the outcome of Ms Tuiwawa’s application for leave for judicial review. Her application remains, as observed in Pio Tikoduadua, Permanent Secretary for Justice, Electoral Reform, Public Enterprises and Anti-Corruption and Public Service Commission and Human Rights Commission; Ex parte Lesili Tuiwawa (No 1) (JudRev HBJ No. 40 of 2008, 22 December 2008)(Tikoduadua and Public Service Commission; Ex parte Tuiwawa (No 1) [2008] FJHC 353; HBJ40.2008 (22 December 2008)), premature. However, it is important for the Permanent Secretary and Public Service Commission to ensure that the limitations set upon Ms Tuiwawa have a legislative base and that the limitations set upon state servants and public officers generally are subject to legislation rather than simply to policy or General Orders. In their absence, alternative remedies may be available for state servants and public officers who are, or find themselves, subject to limitations upon their liberty and freedom of movement.

Orders

1.	Orders made on 22 December 2008 in respect of Pio Tikoduadua, Permanent Secretary for Justice, Electoral Reform, Public Enterprises and Anti-Corruption and Public Service Commission and Human Rights Commission; Ex parte Lesili Tuiwawa (No 1) (JudRev HBJ No. 40 of 2008, 22 December 2008)(Tikoduadua and Public Service Commission; Ex parte Tuiwawa (No 1) [2008] FJHC 353; HBJ40.2008 (22 December 2008)) remain.

2.	No further order as to costs.

Jocelynne A. Scutt
Judge

Suva
10 March 2009