State v Permanent Secretary for Works, Transport and Public Utilities, ex parte Tubunaruarua [2012] FJHC 985; HBJ02.2012 (23 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBJ 02 OF 2012

BETWEEN :

THE STATE

AND:

PERMANENT SECRETARY FOR WORKS, TRANSPORT & PUBLIC UTILITIES.
RESPONDENT

PUBLIC SERVICE COMMISSION
INTERESTED PARTY

EX PARTE:

RUSIATE TUBUNARUARUA and OTHERS
APPLICANTS.

Appearances: Mr. R. P. Chaudhry for the Applicants.
Mr. S. Sharma for the Respondent and Interested Party.
Date / Place of Judgment: Friday 23rd March, 2012 at Suva.
Coram: The Hon. Justice Anjala Wati.

RULING

CATCHWORDS:

Jurisdiction – judicial review proceedings – substantive issue being termination – whether termination process by the Public Service Commission subject to challenge in Court – s.23B(1) (ii) and (iii) of the Administration of Justice (Amendment) (No.3) Decree 2010 (Decree No. 14 of 2010).

LEGISLATION:

The Administration of Justice Decree 2009 (Decree No. 9 of 2009).
The Administration of Justice (Amendment) (No. 3) Decree of 2010 (Decree No. 14 of 2010).

CASES:

The State v. Public Service Commission and Ana Laqere [Unreported] High Court Judicial Review Case No: HBJ 01 of 2012.

1. The substantive application is for leave for judicial review against the decision of the respondent of the 12th day of December, 2011 in terminating the applicants' employment.
   
2. The applicants are civil servants and their terms and conditions of the employment are governed by the "Terms and Conditions of Employment for Government Wage Earners ["GWE"]".
   
3. The preliminary issue before the Court is that of jurisdiction under s. 23B (1) of Decree No. 14 of 2010.
   
4. S. 23 B (1) of Decree No. 14 of 2010 is headed "certain decisions of the state not to be challenged". The specific issue before the Court is whether the decision of the PSC to terminate the applicants' employment is subject to challenge in Court.
   
5. The counsel for the State argues that the scope of s.23 B (1) (ii) and (iii) is very wide and covers the decision to terminate as well. Mr. Chaudhry argues otherwise.
   
6. Mr. Chaudhry argues that the decision of termination is excluded from the above section and is subject to challenge in the High Court having original jurisdiction to hear judicial review matters. He further argued that leave is not sought against the Government of Fiji or any Minister or the Public Service Commission. It is against the Permanent Secretary, Mr. Francis Kean.
   
7. Mr. Chaudhry contends that s.4 of Decree No.9 of 2009 provides for the Courts to be independent of the executive branch of the government or any other authority, in the exercise of its judicial function. This ordinarily, it was argued, gives the Court jurisdiction to review any matter.
   
8. Mr. Chaudhry says that no proceedings can be brought against the Public Service Commission under the Employment Relations Promulgation 2007 ("ERP") but this judicial review matter is not a proceeding under the ERP but under s.6(1) of Decree No. 9 of 2009 which confers on the High Court unlimited jurisdiction to hear and determine any civil proceedings.
   
9. Decree No. 14 of 2010 was enacted to amend Decree No. 9 of 2009 by addition of a new section of 23B.
   
10. The material parts of s.23B reads:-
    

23B " (1) No court...shall have the jurisdiction to accept, hear, determine or in any other way entertain, any challenges at law, in equity or otherwise (including any application for judicial review) by any person or body, or to entertain or grant any remedy to any person or body, in relation to the validity, legality or propriety of any action, decision or order of the Government of the Republic of Fiji, any Minister, the Public Service Commission or any statutory authority or Government entity to:

(i) ...

(ii) Alter or amend the terms and conditions of employment of any person in any public office or public service, including any changes effected through directions issued by the Public Service Commission by any memorandum or circular or through any other directive issued by the Government of the Republic of Fiji, any Minister, the Public Service Commission or any statutory authority or Government entity; or

(iii) Any changes to terms of services including the remuneration of any person in public office or public service, statutory authority or Government entity;"

11. I will closely look at each subsection and ascertain whether termination is caught by the said subsections. The first limb of subsection (ii) states that any alteration or amendment of the terms and conditions of employment of any person by the Public Service Commission ("PSC") is not subject to challenge in Court.
    
12. The first limb of subsection (ii) captures any changes being made to the existing terms and conditions of the employment. Alteration or amendment can only be made to existing terms and condition of an employment. If a contract is terminated, it comes to an end notwithstanding whether the termination was wrong and unfair. No alteration can occur to a contract which ceases to exist upon termination. It thus is apparent, that termination was not envisaged by the first limb of subsection (ii).
    
13. The second limb of subsection (ii) reads "including any changes effected through directions issued by the Public Service Commission". The second limb has to be read conjunctively with the first limb as it uses the word "including" to connect the term "changes" to the same subject being "the employment" of any person. Once again, any changes to any employment can only occur to existing employments.
    
14. Subsection (iii) confines the changes to "terms of service". Whilst subsection (ii) covers general changes to the employment, subsection (iii) covers only the changes on "terms of service". It would be affront to sense of justice to interpret that changes can be made to terms of service which is not in existence and extinguished upon termination.
    
15. The question then arises is that if subsection (ii) is a general provision to include any changes to the existing employment then what is the need for enacting the following subsection (iii) when it could have been covered by the former subsection. I find that subsection (iii) is a mere surplus yet a specific provision only on "terms of services".
    
16. In a contract there are so many terms and conditions which do not specifically relate to the terms of service and some of them are clauses or provisions on internal dispute resolution, discipline procedures, uniforms and likewise. These provisions are not the core provisions on "service" like provisions on the hours of work, amount of pay, period of employment, retirement age and likewise. It is this difference that is specifically covered by the two separate subsections.
    
17. Further, subsection (iii) reads "including the remuneration". Changes can only be made to a person's remuneration if his contract of service is on foot. The use of the word "remuneration" thus strengthens my view that the changes that are intended by subsection (iii) are changes to an active employment contract.
    
18. I am further fortified in my view when I look at the heading of s. 23B. The heading indicates that only "certain" decisions are not subject to challenge. It does not include all decisions. If termination was included then basically all decisions would not be subject to challenge. There was no need to give s. 23B a heading in the current form.
    
19. Further, if termination was covered then the legislature would have either specifically stated that the decision of the PSC to terminate any employment is not subject to challenge or it would have simply said that any decision of the PSC is not subject to challenge. There was no need to provide the specific category of the decisions that are not subject to challenge.
    
20. Decree No. 14 of 2010 is an amending legislation which amended Decree No. 9 of 2009. This earlier decree by s. 23 (3) (e) specifically covered that any decision by the PSC to terminate any employment between the periods 5 December, 2006 to 7 January 2007 is not subject to challenge. The question then is that if the legislature had so specifically covered termination in Decree No. 9 of 2009, why could it not do the same in the amending legislation if it intended to cover terminations.
    
21. S.23A of Decree No. 9 of 2009 reads:-
    

23(3) "Any proceeding, of any form whatsoever, commenced (but not yet determined) in the Courts established by the Constitution Amendment Act 1997 (or any previous Constitutions or written law), which purports:

(e) ...To challenge any decision of the President, or the Executive or the Government or employees of the Government to terminate any employment (whether in public office or not) between 5 December 2006 and 7 January 2007, on any ground whatsoever;

...Shall wholly terminate immediately upon the commencement of this Decree, and a Certificate to that effect shall be issued by the Chief Registrar to all the parties."

22. In absence of any unequivocal provision, the Court cannot interpret s. 23B of Decree No. 14 of 2010 to exclude the rights of any individual.
    
23. Mr. Chaudhry's argument that he has not sued the PSC but the Permanent Secretary is baseless as the decision of PSC is executed by the Permanent Secretary.
    
24. Finally, I cast my mind to the case of The State v. Public Service Commission and Ana Laqere [Unreported] High Court Judicial Review Case No: HBJ 01 of 2012. Mr. S. Sharma argued that for reasons of judicial comity I must follow the decision. In that case it was held that suspension from work cannot be subject to challenge as it is caught by s. 23 B of Decree No. 14 of 2010.
    
25. The matter before me is not on the issue of suspension. It is on termination. Suspension does not bring a contract to an end. It only is a change in the term of service so it is clearly caught by the subsection. The question of judicial comity therefore does not arise.
    
26. I am clearly of the view that the provisions of S. 23B does not preclude a person from bringing any proceeding in Court arising out of a decision by PSC to terminate any persons employment. The two subsections (ii) and (iii) clearly intends an active contract and changes to the same, albeit ex facie it opens a room for debate.
    
27. In the final analysis, the Court has jurisdiction to hear the application for leave for judicial review. I shall appoint a date for hearing upon consultation with the parties.
    
28. The question of jurisdiction was important to resolve. The parties have assisted the Court and as such I do not think that any party should be penalised by any order for costs of the preliminary application. Accordingly, I make no order as to costs.
    

Anjala Wati
Judge
23.03.2012

__________________________________________
To:

1. Messrs Gordon & Chaudhry Lawyers, solicitors for the applicants.
2. AG's Chambers, solicitors for the respondent and interested party.
3. Case: HBJ 2 of 2012.