Ram v The Director of Immigration [2006] FJHC 15; HBC0001.2006 (18 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0001 OF 2006

BETWEEN:

AJAY RISHI RAM
PLAINTIFF

AND:

THE DIRECTOR OF IMMIGRATION
FIRST DEFENDANT

MR. LESI KOROVAVALA
SECOND DEFENDANT

THE FIJI POLICE FORCE
THIRD DEFENDANT

Ms S. Devan for Plaintiff
Mr. S. Turaga for Defendants

Date for Hearing: 10th January and 16th January 2006
Date for Decision: 18th January 2006

DECISION ON NOTICE

FACTS:

The plaintiff was a civil servant employed as an immigration officer since January 1995. On 20^th January 2005 he was suspended without pay pending police investigations into fraudulent and corrupt practices of certain employees at the Immigration Department. He was also prohibited from travelling out of Fiji unless authorized to do so by Acting CEO Home Affairs, Immigration and National Disaster Management. Since January 2005, he has been subjected to only one police interview in August 2005. No criminal charges by police or any disciplinary charges by PSC have been laid against the applicant.

The applicant is seeking from this court a declaration that the second defendant’s decision to restrict the plaintiff from leaving Fiji infringes Section 34(3) of the Constitution.

CONSTITUTIONAL PROVISIONS:

Section 34(3) provides that every citizen has the right to leave the Fiji Islands. Section 34(6) (a) provides for restrictions which can be placed on movement of a person. It states:

“(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) provides for the detention of the person or enables a restraint 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;
(ii) in consequence of his or her conviction for an offence; or

(iii) for the purpose of protecting another person from apprehended violence.”

The UDHR in Article 13(2) provides that “Everyone has the right to leave any country, including his own, and to return to his country”.

APPROACH TO INTERPRETATION:

When construing a human rights provision in a constitution, one has to give it a liberal construction as a narrow literal construction of such provisions would frustrate the realization and enjoyment of such rights. For rights to be meaningful, they must be interpreted so as to render them effective. The right to freedom from movement is recognized both by UDHR and by our constitution.

Justice Winter in Dhirendra Nadan & Another v. The State – Criminal Appeals 85 & 86 of 2006 stated:

“The primary duty of a judge when considering such constitutional provisions must be to give them a wide and purposive interpretation to ensure that under this supreme law there is only ever a legitimate exercise of governmental power and an unremitting protection of individual rights and liberties.”

I agree with his comments. It is for the state in the present proceedings to show that the power it seeks to exercise is legitimate exercise of governmental power. Once a person has shown or facts reveal that prima facie a right has been infringed, it is for the state to justify the infringement of the right on balance of probability and not for the “victim” to exclude all factors of justification. The onus of justification rests on the person who violates or infringes the right.

APPLICATION:

There are no court proceedings or any disciplinary proceedings pending before any tribunal in respect of the plaintiff. For one year now, no charges have been laid. At the same time the plaintiff is not paid any wages, nor can he seek employment elsewhere. A year’s delay is a considerable delay. The defendants admit the delay but suggest that witnesses are unavailable, that the investigating officer has other cases to handle and that documentary records are missing. These factors seem to suggest that these difficulties will persist.

This delay persists in spite of the PSC Circular No. 17 of 2005 which states that:

“This is to advise that a specific timeline of three (3) months is now put in place to complete and finalise all disciplinary proceedings from the date charges are laid and/or suspension as effected to the time, the Commission finally makes its decision.”

Opposed to this is the position of the plaintiff who has found employment in New Zealand and has got a permanent residence visa to travel to New Zealand. His family is already there including two young children.

The plaintiff is suspended. He cannot work. He gets no wages or salary. And the defendants for one year now are unable to move along. If the defendants cannot move along with any proceedings, then this court shall permit the plaintiff to move on with his life. Accordingly I declare that the plaintiff’s constitutional right of freedom of movement has been infringed and I order that he be allowed to leave Fiji.

[ Jiten Singh ]
JUDGE

At Suva
18^th January 2006