It was Privy Council Appeal No. 42 of 1997. The appellant was Elloy de Freitas. The respondents were The Permanent Secretary in the Ministry of Agriculture, Fisheries, Lands and Housing and The Public Service Commission. The case surrounded the decision to fire Mr. de Freitas, who was an Extension Officer in the ministry, because he had participated in certain demonstrations, or as we like to call them, marches, against government corruption. The marches resulted from the findings and allegations that came from a Commision of Inquiry that investigated the transshipment into Antigua of a consignment of guns.
Mr. de Freitas peacefully picketed the ministry headquarters and was immediately informed by the Permanent Secretary (PS) that he was in breach of the restraints imposed on civil servants by Section 10(2)(a) of the Civil Service Act laws of Antigua and Barbuda. The notice of “breach” was accompanied by a threat to refer the matter to the Public Service Commission for disciplinary action.
Of course, the civil servant denied that he was in breach and referred the PS to the Constitution of Antigua and Barbuda, Sections 12 and 13, which protected his rights of expression and assembly. According to the Privy Council records, “After further communications between himself and the first respondent, the latter, under a power which he possessed under the Public Service Commission Regulations 1967, interdicted the appellant from the exercise of the powers and functions of his office.” Essentially, he was fired.
Mr. de Freitas was ‘not taking it so’ and decided to exercise his rights to the courts. The matter came before Justice Redhead who “declared that Section 10(2)(a) of the Civil Service Act was unconstitutional. He took the view that it had not been demonstrated that Section 10(2) fell within the permissible limits prescribed by the Constitution.” The appeals process eventually landed the case in front of the Privy Council for determination. The end result? According to the judgement, “It follows from the view taken by their Lordships on the general issue that the interdiction and the intended disciplinary proceedings contravene the appellant’s constitutional rights. Their Lordships will accordingly humbly advise Her Majesty that the appeal should be allowed and the orders pronounced by Redhead J. restored.”
That judgement, in Elloy de Freitas’ favour, was dated 30th June, 1998 almost 20 years ago, and almost 25 years since Justice Redhead’s pronouncement on the matter. So, how can this section of the Civil Service Act still be on our books? How?!?! When something is determined to be unconstitutional, swift action should be taken to remedy the situation. Why hasn’t this been done? In the 20 years since the ruling, the Labour Party (in both name variations) has held power for 10 years and the United Progressive Party (UPP) has held power for 10 years. Each party has had a decade to repeal this draconian section of the Civil Service Act and both have failed to do so.
Why? We know that laws can move swiftly through parliament, as we are treated to simultaneous First, Second and Third Readings on a regular basis, so what is the hold-up for repealing this unconstitutional bit of legislation? That is a question to both the UPP and the ABLP. In case you are wondering, Section 10(2) provides: “A civil servant may not – (a) in any public place or in any document or any other medium of communication whether within Antigua and Barbuda or not, publish any information or expressions of opinion on matters of national or international political controversy.”
It is amazing that a censorship law such as this ever made it on the law books, but even more astonishing is the fact that it is still there – 20 years after it was deemed unconstitutional! The Antigua and Barbuda Public Service Association has been pressing for a change to the Civil Service Act of 1984 to address this issue and we commend them for not allowing the issue to fade into the background. With the government being the largest employer in the nation, this affects a large number of people. But we should not stop with Section 10(2) of the Civil Service Act, there are other areas in the laws and regulations that need to be addressed.
The Civil Service Regulations numbers 45 (1) c & d and 46 (1) & 2 are areas that come to mind that should be scrutinised as well. Within those regulations there is this gem: “an officer shall not (c) accept to be interviewed by any person on questions of public policy or any matter of political or administrative nature or on matters affecting the administration or the security of any state or territory.”
Okay, we can understand national security being off-limits but for most everything else, this makes no sense to us. So, who can speak on public policy or matters of political and administrative natures? Certainly, we are not expecting ministers to be the only ones that communicate with the public on government matters. In the end, none of this bodes well for freedom and transparency in our bit of paradise, so let’s fix the issues before someone else is victimised for exercising his or her constitutional rights.