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Vucago v The Commissioner of Police [2024] FJHC 471; HBM062.2021 (29 July 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL CASE NO. HBM 062 OF 2021

IN THE MATTER of an application for Constitutional Redress and interpretation made pursuant to the High Court (Constitutional Redress) Rules 2015

NANISE VATULELE TUBUDONU VUCAGO
Applicant

V

THE COMMISSIONER OF POLICE
First Respondent

THE MINISTER FOR HEALTH & MEDICAL SERVICES
Second Respondent

THE PERMANENT SECRETARY FOR HEALTH & MEDICAL SERVICES
Third Respondent

THE MINISTER FOR EMPLOYMENT, PRODUCTIVITY & INDUSTRIAL RELATIONS
Fourth Respondent

THE ATTORNEY-GENERAL OF FIJI
Fifth Respondent

Counsel: Applicant in Person
Ms G Fatima for the Respondents

Hearing : 15 February 2024
Judgment: 29 July 2024

JUDGMENT

[1] The Applicant, Ms. Nanise Vucago, does not believe that the COVID-19 vaccination is effective. It is apparent from her evidence and submissions that she holds the firm view that the vaccination is, in fact, a risk to the recipient’s health. Ms Vucago expressed that view publicly in Fiji in 2021 at a time when the then Government was taking extraordinary steps to counter the spread of the Covid-19 virus in Fiji. The Government considered the steps justified. It encouraged the population to be vaccinated in order to contain the spread of the virus. It took measures and brought in laws, one of which was the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 (which I will refer to as the “2021 Regulations”). The 2021 Regulation required employers to preclude unvaccinated workers from the workplace and permitted employers to dismiss the unvaccinated workers.

[2] Ms. Vucago’s opposition to the vaccination appears to have antagonized the then Government. Her social media posts regarding the efficacy of the vaccination in June 2021 resulted in criminal charges being brought against her. She says that her refusal to take the vaccination caused her some considerable difficulty in terms of obtaining employment and obtaining access to government-funded schemes.

[3] Ms. Vucago seeks orders and declarations that the government's conduct in 2021 breached her constitutional rights. She has brought a claim for constitutional redress.

Background

[4] Ms. Vucago was employed with the Fiji National University (FNU) in 2021.^[1] Her contract was due to expire on 14 August 2021. She was employed as an Assistant Lecturer with the School of Public Health and Primary Care at FNU’s College of Medicine, Nursing and Health Sciences.

[5] Ms. Vucago holds several qualifications in the field of health, including Diplomas in Health Inspection and Environmental Health, and Post Graduate Certificates in Health Promotion and Health Services Management. She has worked for the Ministry of Health as an Assistant Health Inspector, Senior Assistant Environmental Health Officer and Senior Health Promotion Officer. As stated, she has also held academic roles in the field.

[6] On 2 June 2021, FNU wrote to Ms. Vucago to advise that it would not renew her contract, and that it was abridging her contract. FNU paid out Ms Vucago for the remaining period of her contract.^[2]

[7] From early 2020, Fiji and, indeed the world, was in the grip of a pandemic brought on by the COVID-19 virus. A vaccination was not developed until about early 2021. The Fiji Government then took steps to vaccinate the population. Part of these steps involved incentivizing the population to take the vaccination.

[8] Ms. Vucago offered a different voice on the efficacy of the vaccination. She posted six videos on Facebook in June 2021 discussing the COVID-19 virus and the vaccines. She recommended that people obtain information regarding the vaccines and satisfy themselves of their own position on the need for the vaccines. She reminded the public of their right to refuse to take the vaccination.

[9] The same month, Ms. Vucago made a complaint to the police regarding what she perceived to be ‘breaches of the protocols on outbreak of infectious disease under the Public Health and Quarantine Act’^[3] by the Minister and Permanent Secretary for Health and Medical Services. The police investigated the complaint, referring the matter to the Director of Public Prosecutions Office. On 24 June 2021, the police wrote to Ms. Vucago to inform her that the advice from the DPP's office was that there was insufficient evidence to lay any criminal charges.

[10] Matters with the police took a turn for the worst for Ms Vucago shortly thereafter. On 10 July 2021, the police executed a search warrant at Ms. Vucago’s home, seizing various personal items. She was subsequently charged on 13 July 2021 with five counts of malicious acts under s 15(a) of the Public Order Act 1969. Each count related to a posting of her video on Facebook. The allegation being that Ms Vucago had, by posting each video, ‘maliciously fabricated and falsely spread locally and abroad by word of mouth through the “Vucago Noody” Facebook account condemning the COVID-19 vaccination with intention to create public alarm, public anxiety or disaffection to result in the detriment of the public’.

[11] During this period the 2021 Regulations were enacted. On 8 July 2021, the Minister for Employment exercised his power under s 62 of the Health and Safety at Work Act to enact the 2021 Regulations.^[4] The 2021 Regulations required all workers to be vaccinated in order to enter the workplace and permitted employers to dismiss workers who failed to be vaccinated. Ms. Vucago claims that this legislation was discriminatory. It disadvantaged her, preventing her from being able to enter the workforce.

Present proceedings

[12] On 30 August 2021, Ms. Vucago filed an Originating Summons with a supporting affidavit. Ms Vucago sought constitutional redress for the alleged violation of her rights under the Constitution. The substantive orders and declarations sought by Ms Vucago are:

1. A DECLARATION that the Applicants Constitutional freedom of speech and to express her thoughts and opinion under section 17 of the Constitution Republic of Fiji 2013, on the administration of the Covid -19 public health protocols and its vaccination in the social media were violated and;
   
2. A DECLARATION that the Applicant’s constitutional freedom to social security schemes under section 37 of the Constitution of the Republic of Fiji 2013, were violated and breached by the 2^nd, 3^rd, 4^th and 5^th, Respondents by the imposition of the Covid -19 vaccination mandate as a pre-condition in accessing the scheme and/or any services provided by the Government.
   
3. A DECLARATION that the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 – I/N 53, by the 4^th Respondent is discriminatory against the unvaccinated.
   
4. AN ORDER annulling the arrest, detention and charge against the 1^st Respondent and AN ORDER that the 1^st Respondent withdraws the charge against the Applicant.
   
5. AN ORDER annulling all COVID-19 vaccination mandates imposed by the 2^nd, 3^rd, 4^th, 5^th Respondents and AN ORDER that the Respondent be stopped from further coercing the people of Fiji to be vaccinated.
   
6. AN ORDER annulling the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 – L/N 53, for its violation of the Constitution of the Republic of Fiji 2013.
   
7. AN ORDER that the time for the service of the summons and the supporting affidavit to be abridged to two days by the High Court Civil Registry as this is a matter of urgency.
   
8. AN ORDER that this Summons be converted into a writ action should there be a need to hear oral evidence of the Parties.
   

[13] In her supporting affidavit, Ms. Vucago provides an account of the material events and annexes CDs of her postings in June 2021 (along with a written transcript). It is apparent from reading the transcript that Ms. Vucago did not believe the vaccinations were safe. She was critical of the risk that the vaccination posed to those who took it. She was critical of the Government’s message to the population that the vaccination was an effective tool against the spread and impact of the virus.

[14] In November 2021, the police withdrew the criminal charges against Ms. Vucago following advice from the DPP's office.

[15] In January 2022, the Respondents filed affidavits in response from Dr. James Fong (Permanent Secretary for Health and Medical Services) and Rajesh Krishna (Director Legal for the Fiji Police Force). Dr. Fong provided evidence regarding the effectiveness of the COVID-19 vaccination and the need for the population to take the vaccination to combat the pandemic. Mr. Krishna outlined the actions of the police in relation to the criminal charges. He confirmed that the charges had been withdrawn.

[16] Ms Vucago filed two affidavits, dated 7 April 2022, responding to the affidavits for the Respondents. With respect to Dr. Fong's evidence, Ms. Vucago took issue with Dr. Fong's medical opinion. Ms. Vucago suggested that Dr. Fong exaggerated the threat of the COVID-19 virus and that the vaccinations themselves pose a serious health risk to the taker. Ms. Vucago is critical of the statistics regarding the number of deaths from COVID-19 and believes that there have not been adequate autopsies conducted to verify the cause of death.

[17] With respect to Mr. Krishna's evidence, Ms. Vucago complains that the police should have obtained the advice of the DPP's Office before laying the charges.

[18] The present proceeding was initially heard by the previous Chief Justice, Kumar J, on 14 July 2022. A decision was to be issued on notice. Sadly, Kumar J passed away before doing so.

[19] I convened a fresh hearing on 15 February 2024. My sincere apologies to the parties for the delay issuing this decision. I have had three cases which involve applicants challenging the validity of the 2021 Regulations. I wished to receive the submissions for each of these cases before making a determination on the issue.

Decision

[20] The Respondents raise preliminary issues over the form of Ms Vucago’s claim. This includes the failure to file a Notice of Motion as required under r 3(1) of the High Court (Constitutional Redress) Rules 2015. Ms Vucago has instead filed an Originating Summons. Ms Vucago must have been aware of the requirements under the 2015 Rules as they are cited in her Originating Summons. The requirement in the 2015 Rules is clear. Notwithstanding, I will consider the substance of her claim

[21] In my view, there are three issues that arise from the relief sought by Ms Vucago. The issues are as follows:

1. Whether the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 are lawful. This question arises with respect to Declarations 3 and 5, and Order 8 of Ms Vucago’s Originating Summons.
   
2. Ms Vucago is critical of the conduct of the police in respect to the charges brought against her for her Facebook posts in June 2021. Was her right of freedom of speech under s 17 of the Constitution infringed by the police? Declaration 1 and Order 6 of Ms Vucago’s Originating Summons are in issue here. However, Ms Vucago no longer pursues Order 6 given the police have withdrawn the criminal charges.^[5]
   
3. Whether Ms Vucago’s constitutional rights were infringed with respect to the COVID-19 mandates implemented by the Government. This question applies to Declarations 2 and 4 and Order 7.
   
1. Are the Health and Safety at Work (General Workplace Conditions) (Amendment) Regulations 2021 lawful?
   

[22] Ms Vucago argues that 2021 Regulations infringed her constitutional right to freedom from discrimination (s 26) and her right to full and free participation in the economic life of the State (s 32). She seeks declarations to this effect and an order annulling the 2021 Regulations.

[23] I considered the legality of the 2021 Regulations recently in Fijian Teachers Association v State [2024] FJHC 431 (15 July 2024). I determined that the 2021 Regulations were lawful. Whilst I accepted that the constitutional rights of the Fijian Teachers Association had been limited by the 2021 Regulations (as had Ms Vucago’s), I nevertheless determined that the 2021 Regulations were properly enacted by the Minister under s 62 of the Health and Safety at Work Act 1996. Further, the 2021 Regulations were both justified and proportionate.

[24] As such, Ms Vucago cannot succeed with her claim in respect to relief 3, 5 or 8.

2. Criminal charges brought against Ms Vucago
   

[25] Ms Vucago argues that the police infringed her constitutional right under s 17 to freedom of speech, being the freedom to impart information, knowledge and ideas. The police brought criminal charges against Ms Vucago for posting videos on Facebook wherein she criticized the Government’s conduct with respect to the COVID-19 vaccination and urged the public of Fiji to satisfy themselves of the efficacy of the vaccination.

[26] The police took the position that Ms Vucago was maliciously fabricating or knowingly spreading false information regarding the vaccination to create public alarm or anxiety. It seized her personal property on 10 July, then arrested, detained and interviewed her. The charges were laid on 13 July 2021. Ms Vucago had to appear twice before the Magistrate to answer the charges. On 16 November 2021 (being the second occasion Ms Vucago appeared in court) the police withdrew the charges. It did so on advice from the Office of the Director of Public Prosecutions.

[27] Pursuant to s 6(5) of the Constitution, rights under Chapter 2 may be restricted by ‘limitations expressly prescribed, authorized or permitted (whether by or under a written law) in relation to a particular right or freedom in this Chapter’. The right to freedom of speech is no exception. Indeed, there are a number of laws that place restrictions on a person’s right to free speech. For example, the law of defamation. The Public Order Act 1969 also contains restrictions. The Act provides restrictions on using words to cause public disturbance or to spread false information designed to cause public alarm.

[28] The question here, as I see it, is not whether the police have infringed Ms Vucago’s right to free speech but whether it has acted outside its powers when it charged Ms Vucago. In my view, this complaint is more suitably brought by Ms Vucago by way of a Writ of Summons setting out her causes of action.

[29] Section 44(4) of the Constitution provides:

The High Court may exercise its discretion not to grant relief in relation to an application or referral made under this section if it considers that an adequate alternative remedy is available to the person concerned.

[30] I am satisfied that Ms. Vucago has an adequate alternative remedy in respect to her complaint regarding the conduct of the police. Her complaint in reality is that the police have abused its powers when they charged her and that she should never have been charged in the first instance. Her proper recourse is to file a Writ of Summons against the police.

3. Lawfulness of Government COVID-19 Mandates
   

[31] Ms Vucago argues that many of the measures brought in by the Government during the COVID-19 pandemic were in breach of the legislation as well as discriminatory. For example, curfews and restrictions on movement. Ms Vucago refers to a directive by the then Prime Minister to the populace not to visit Beqa Island.^[6] Reference is made by Ms Vucago to breaches of the Public Health Act 1935 (Part 7) and the Quarantine Act 1964.^[7] I have to say I found these submissions by Ms Vucago difficult to follow. The proposition is straightforward enough. But Ms Vucago did not properly identify the action taken by the Government, identify how the specific action was unlawful, and demonstrate how she was affected by the Government action. On the whole, the arguments and evidence were disjointed. A further problem for Ms Vucago is that she sought to introduce evidence through her submissions. Her written submissions dated 6 February 2024 contain numerous references to matters of evidence (not contained in her affidavits) and her annexures to the written submissions also contain evidence.

[32] Ms Vucago further argues that the Government withheld access to the Social Security Scheme to those who were not vaccinated. She argues that this in breach of ss 32 and 37 of the Constitution. Again, I found Ms Vucago’s case here somewhat underdone. No evidential foundation was set out in her affidavits as to the social security scheme she says she was not entitled to access because she was unvaccinated. No specific evidence is led on this (except for general assertions such as at para 10 of her reply affidavit to Dr Fong dated 6 April 2022, wherein she stated, ‘including the enticement of people to be vaccinated or miss out on the government assistance or services’). Ms Vucago developed this a little more in her oral submissions on 15 February 2024. She stated:

...me and my mother were not allowed to enter the church. Social security matters, we were deprived from accessing, even my mother at that point, she was warned about her social welfare scheme she was accessing. For me, it was very clear, there was nothing for the unvaccinated people. They were just, the amount that was mentioned, 360, there were three payments done. Starting from $90, 180, and 360. And they were all given to the vaccinated people...

[33] Ms Vucago did not provide evidence on these matters in any of her three affidavits.

[34] What I am left with is an issue that is deficient in multiple respects. Ms Vucago does not set out the evidential foundation as to how she has been affected. For example, what restrictions (movements, curfews, etc.) were placed on her that she complains of? What social security schemes were denied her on the basis that she was unvaccinated? When were these restrictions and schemes put in place and what purported authority (law) was relied on by the government for these restrictions and schemes. Simply put, I am in no position to decide this issue on the evidence and information provided by Ms Vucago.

[35] The onus is on an applicant to demonstrate on the balance of probabilities that her constitutional rights were infringed. Ms Vucago has failed to discharge the burden.

Orders

[36] I make the following orders:

1. The Applicant’s originating summons is dismissed.
   
2. As the case raises important constitutional questions, I make no order as to costs.
   

.....................................
D. K. L. Tuiqereqere
JUDGE

Solicitors:
Appellant in Person
Office of Attorney-General’s Chambers for the Respondents

^[1] It appears that Ms Vucago had been employed with the FNU since March 2017.
^[2] Ms Vucago states at para 6 of her affidavit dated 30 August 2021, that she ‘accepted the terms and resigned on 3^rd June 2021’.
^[3] Para 15 of Ms Vucago’s affidavit dated 30 August 2021.
^[4] The 2021 Regulations were subsequently repealed in March 2023.
^[5] Para 9.2 of Ms Vucago’s Submissions dated 6 February 2024.
^[6] Para 6.1.5 of Ms Vucago’s written submissions dated 6 February 2024.
^[7] Para 4.1.8 & 4.1.17 of Ms Vucago’s written submissions dated 6 February 2024.