In the case of Council of Civil Service Unions v. United
Kingdom, it was discussed that an absolute prohibition may constitute a
restriction. Moreover, the restrictions in section 10 of the Civil Service Act
are not universal since they relate only to matters of national or
international controversy. The freedoms in question can be exercised
without restraint out with matters in that category.
The Court of Appeal accepted that Section 10(2)(a) cannot
survive as it stands. Next, the Court of Appeal applied the presumption of
constitutionality and took the view that there should be implied in the sub-section
some such words as “when his forbearance from such publication is reasonably
required for the proper performance of his official functions”.
This is was totally unacceptable to their Lordships. They
said that
“While it may be justifiable on occasion to imply words
into a statute where there is an ambiguity or an omission and the implied words
are necessary to remedy such a defect, in the present case subsection 10(2)(a)
is perfectly clear and entire, free from any ambiguity or omission.”
The Court of Appeal also relied upon the reasoning that the
said rule [Section 10 (2)] applies to all civil servants without distinction so
that it is left to the individual in any given circumstances to decide whether
he is or is not complying with the rule.
Again, their Lordships were unimpressed. They said that
Section 10 (2) is fenced with a possible criminal sanction in section 32 of the
Act and it is necessary that in that context a degree of precision is required
so that the individual will be able to know with some confidence where the
boundaries of legality may lie. Hence, all expressions critical of the conduct
of a politician cannot be forbidden.
Their Lordships iterated that “it is a fundamental
principle of a democratic society that citizens should be entitled to express
their views about politicians, and while there may be legitimate restraints
upon that freedom in the case of some civil servants, that restraint cannot be
made absolute and universal. But where the line is to be drawn is a matter
which cannot in fairness be left to the hazard of individual decision.”
Further, an interesting case was cited by their Lordships. United
States Supreme Court in National Association for the Advancement of
Colored People v. Button[1],
said that:
“The objectionable quality of vagueness and overbreadth
does not depend upon absence of fair notice to a criminally accused or upon
unchanneled delegation of legislative powers, but upon the danger of
tolerating, in the area of First Amendment freedoms, the existence of a penal
statute susceptible of sweeping and improper application ... These freedoms are
delicate and vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions ... Because First Amendment freedoms need
breathing space to survive, government may regulate in the area only
with narrow specificity.”
Additionally, their Lordships opined that “an enactment
construed by severing, reading down or making implications into what the
legislature has actually said should take a form which it could reasonably be
supposed that Parliament intended to enact.”
Another interesting case in this regard was cited by the
Privy Council. In Osborne v. Canada (Treasury Board)[2],
it was held that:
“The language of (the section) is so inclusive that (the
trial judge) declined to provide any definition of its scope but rather
preferred to deal with the activity of each of the plaintiffs individually in
measuring the restriction imposed by the section against the Charter. The
number of instances in which the operation of the section would otherwise have
been in breach of ... the Charter is extensive. On this basis there is little
doubt that in future other instances will arise which will require a similar
reading down of the section. In the final analysis, a law that is invalid in so
many of its applications will, as a result of wholesale reading down, bear
little resemblance to the law that Parliament passed and a strong inference
arises that it is invalid as a whole ... In my opinion, it is Parliament that
should determine how the section should be redrafted and not the court. Apart
from the impracticability of a determination of the constitutionality of the
section on a case-by-case basis, Parliament will have available to it
information and expertise that is not available to the court.”
Finally, their Lordships said that even if we were to ignore
all the above mentioned arguments, Section 10 (2) would still have to satisfy
the requirement of being “reasonably justifiable in a democratic society.”
To Be Continued....
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