A Constitutional Challenge Can Be Mounted

By Alexis B. Montgomery

THE government, in its commitment to preserving the public trust through the instrument of the Staff Orders for the Public Service of Saint Lucia, is not justified in upholding any type of card blanche restrictions, which may border on an infringement upon the constitutional rights of public servants.

The point of contention is not that a young public officer recently came forward to publicly express an intention to participate in a run–off. This has happened before on both sides of the party political fence and should not be individualized. Individuals who were once school principals and have previously held senior posts in the Public Service are now ministers and senators.

Is abiding with the Standing Orders an instrument that is able to guarantee these persons were non–partisan employees? No. It is understood that its main goal is to shield the integrity of the Public Service by attempting to secure a healthy degree of impartiality. This however, is highly subjective. For example a public officer who has no political dreams or aspirations can decide to leak a very sensitive document because of some other motivation. What now? Where do the Standing Orders stand on this one? It is apparent that some of us are toeing a rather hypocritical line when the shoe is on the other foot.

What the Staff Orders ought to do is to review this policy to ensure that senior public officers are guided by certain restrictions which will be justified under the Constitution. These are the current restrictions that ought to be under scrutiny: Staff Orders for the Public Service of Saint Lucia:

Engagement in political activities
4.16 Officers are expressly forbidden from engaging in party political activity at any time such as:
(a) holding office or taking active part in any political organization;
(b) engaging publicly in political controversy or publicly criticizing the policy of the Government or individual Ministries;
(c) writing letters to the press, publishing books or articles, circulating leaflets or pamphlets or participating in radio or television broadcast on political matters;
(d) canvassing in support of political parties or in any way publicly supporting or indicating support for any political party or candidate.

The outcry for anyone to be fired in the context of these rules, and on the basis of participation in a run off is hardly fair. It can be reasonably presumed that as soon as an individual has the endorsement of a run off victory, that clearly an unforced decision about their career in the public service has to be made. But before the many finger–pointers rush to condemn, here is what The Constitution of St. Lucia says:

11. PROTECTION OF FREEDOM OF ASSEMBLY AND ASSOCIATION
(1) Except with his or her own consent, a person shall not be hindered in the enjoyment of his or her freedom of assembly and association, that is to say, his or her right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his or her interests or to form or belong to political parties or other political associations.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision—
(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;
(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or
(c) that imposes restrictions upon public officers that are reasonably required for the proper performance of their functions, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

The burden of proof lies with the Ministry of the Public Service, Information and Broadcasting to demonstrate how the public officer will compromise the function of his or her duties because of political involvement in a democratic country. This restriction is not applicable across the board simply because there are various levels or grades and responsibilities assigned to public servants. Agreed in some cases, where you have an officer in management a plausible case of conflict of interests can be raised as a genuine concern; although that too may not necessarily be a legitimate basis unless the constitution agrees. These matters can only be fairly determined on a case by case basis. The same degree of risk is not applicable to all positions within the public service.

There is sufficient ground for a constitutional challenge to be mounted in respect of the infringement on the right of not the public servant; but on the citizen of Saint Lucia. However it is best to tread very professionally, diplomatically and with wisdom because our country and the wider world have made great strides because of civil disobedience. The legacy of Nelson Mandela is not a bad place to start appreciating this perspective for those who may need to read more.

If people are butting heads with the system then perhaps the system needs to be user friendly enough in its approach to review itself or cause a review by an independent body. All societies change and with it the wisdom that influenced laws and policies it upheld many years ago are amended, repealed or are no longer enforced over the course of time. Case in point: The United States Supreme Court has ruled in favour of same sex marriages nationwide on Friday, June 26, 2015. Often times it is via upheavals, agitation and friction that societies grow and evolve.

There was a time slavery was lawful. Should this type of inhumane activity still be ongoing because it was enshrined in law? It is time that our fellow Saint Lucians learn how to be more open–minded. An injustice can be enshrined in law and there are always victims of such mistakes until someone is strong and encouraged enough to stand up for what they believe in. When female teachers were being dismissed from the Teaching Service for being unwedded mothers, was that a fair conditionality of their jobs? We forget too quickly and too conveniently in this place.