Restrictions on the Protection of Freedom of Expression for Public Servants: The Case of Barbados

Tyrique Wilson

Abstract

Questions of constitutionality surfaced with great fervour, following reports that charges had been levied against two candidates in the 2022 general election for breaching Barbados’ Code of Conduct and Ethics of the Public Service Act, and the General Orders.

Although landslide election victories (where a single political party wins all of the seats in the upper house) are issues not new to territories such as Grenada and St. Kitts, in the case of Barbados this is an anomaly. The constitutional norms which were compromised had to be considered. Issues of Constitutional Electoral Law which had not previously been considered fell under great scrutiny; particularly those relating to public servants’ participation in political discourse.

The above-mentioned now provides an avenue through which the constitutionality of the restrictions on the freedom of expression for civil servants can be examined; and where suggestions for its reform may be advanced.

I. Introduction

Since the establishment of the Caribbean Court of Justice, the Commonwealth Caribbean has seen the growth of indigenous jurisprudence; to which Electoral Law is no stranger. Notwithstanding the leading case of Ventose v CEO, 53 the region has yet to see an extensive treatise on Electoral Law and its relationship to written and unwritten constitutional principles; and in particular, the legal restrictions had on the freedom of political expression for civil servants.

The January 2022 General Elections in Barbados saw yet another landslide victory, with a single political party gaining all the seats in the lower house. Albeit a repeat of the outcome of the January 2018 General Election, on this occasion, two candidates who at the time were members of the civil service faced disciplinary charges for breaches of the Public Service Act (PSA) and the General Orders of Barbados. These, pithily, ban civil servants from participating in any form of political expression, save in select circumstances with the expressed consent of the Minister in charge of the ministry in which the civil servant is employed.

Following the above-mentioned, the preeminent legal question to be answered is this: are these provisions which bar members of the civil service from “participating in or being candidates in the political process” inherently unconstitutional?

This paper will first explore the evolution of the public service in Barbados. Thereafter, it will take a cursory glance at the right to freedom of expression, with emphasis on political expression, devolved by Barbados’ Constitution. Thereafter, it will look at the legal restrictions imposed on this freedom by the PSA and General Orders. It will then analyse the case law on the point, concluding with proposals for legislative reform.

II. The Evolution of the Public Service in Barbados54

Early Framework: Post-Emancipation Adaptations

The advent of the public service regimes in Barbados can be traced to the devolution of colonial power that was had in the region’s post-emancipation era.

53 [2018] CCJ 13 (AJ)

54 This section relies heavily on: Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

Emancipation in 1838 meant that the ex-slaves formerly regarded as a special kind of property55 were now endowed with “new” legal rights. Thus, it required adjustments in every sector and facet of Barbadian life56 if the ex-slaves were to be properly integrated into an evolving scheme of governance. Naturally, this included the expansion of services at the national level57 to which the public service garnered no exception.

The framework used to govern this ever-expanding public service followed a recommendation from an 1854 report by Trevelayn and Northcote to the English Parliament on the reform of the British Civil Service. They recommended, inter alia, that competitive examinations replace patronage in appointments; that mechanical work should be distinguished from intellectual work; that a unified system of appointment should be introduced; that inter departmental promotions be instituted; that reports on serving officers be submitted regularly; that promotion should be by merit and increments of salary be conditional on satisfactory work.

These recommendations were aspirational given that West Indian societies were still stratified on race and class which prevailed during the colonial era. This made it exceedingly difficult to transpose the more objective recommendations made by Trevelayn and Northcote. Nonetheless, these regulations soon transcended from the metropole to its colonial territories. The United Kingdom introduced, in 1867, a regime of Colonial Regulations58 to govern the appointment, discipline, dismissal and other conditions of service of colonial public officers.

Appointments

For purposes of control over appointments, dismissals and discipline, offices were classed under three heads: those whose emoluments did not exceed 100 pounds per annum, those with emoluments between 100-200 and those above 200.59

55 E.V. Goveia, “The West Indian Slave Laws of the 18th Century” in Chapters in Caribbean History 2, Caribbean University Press, 1970, at p. 25

56 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

57 Ibid

58 Great Britain, Rules and Regulations for Her Majesty’s Colonial Service, London, H.M.S.O., 1867

59 Ibid, Reg. No. 66

In the case of the former, the Governor possessed “absolute disposal”60 of the appointment, subject to reporting it by “the first opportunity [to the Secretary of State]”.61 In the class of appointments carrying 100-200, the Governor was required to report any appointment to the Secretary of State together “with the name and qualification of the person whom he has appointed to fill it previously and intends to fill it following which recommendation is almost uniformly followed.”62 For the latter, the Governor was required to inform the selectee that he holds the office provisionally “until his appointment is confirmed or suspended by Her Majesty”.63

Suspensions and Dismissal

Provisions made for suspension and dismissal, ostensibly, attempted to adhere to the rules of natural justice; although the application of the rules varied according to the class of appointment.64 When the officer in question held an office which exceeded emoluments of 100 pounds, the offence with which he was charged had to be “communicated to him in writing” with the grounds on which it rested. The affected officer was also required to answer the charge in writing.65

If after the explanation the need for suspension arose, then the matter was referred to the Executive. Council and the affected officer had to “defend himself before the Council orally or in writing or as such Council [might] determine.”66 If the Executive Council upheld a suspension, the Governor was required to submit all relevant materials to the Secretary of State who could “confirm or disallow the same.”67

The regulations insisted on the right to be heard. Thus, “no suspension: from office or stoppage of salary was permitted unless such defence had been received and considered”68 except if the party

60 Ibid, Reg. No. 68: It must be noted that while the governor had the liberty to recommend a candidate for the final appointment, it was understood that the Secretary of State had the “power of recommending another instead.”

61 Ibid, Reg. No. 67

62 Ibid, Reg. No. 68

63 Ibid, Reg. No. 68

64 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

65 Reg. No. 84 Great Britain, Rules and Regulations for her Her Majesty’s Colonial Service, London, H.M.S.O., 1867

66 Ibid

67 Ibid, Reg. No. 86

68 Ibid, Reg. No. 87 defaulted in furnishing it when called upon. Where the offence was serious, the officer involved might be provisionally interdicted, but no officer could be formally suspended except by the proceedings described above.69

However, lesser protection was given to those in the lowest class of emoluments. Where a servant in this category was charged, the grounds of dismissal had to be stated and investigated with the aid of the Head of Department and later “communicated to the person inculpated in order that he may be able to defend himself”.70 Dismissal however, did not require confirmation of the Secretary of State.71 Therefore, equality of proceedings and equality of access to the final appellate authority – the Secretary of State, was not afforded to the lowest paid civil servants.72

In light of the foregoing, this period has been characterized as “monolithic and centralized”73 as the Governor had almost sole jurisdiction over public servants74; which often came with little legal redress.75 This period of post-emancipation adaptation, however, saw a rapid expansion in the size of the public service which actuated a refinement in the legal control over the activities and behaviour of public officers.76

Pre-Independence Reformations: Public Service Commissions

The social and political unrest in Barbados77 saw the commission of Lord Moyne, and others, to enquire, report and make recommendations on all aspects of Caribbean life. Although little recommendations were made specifically for the public service, this period saliently saw the introduction and institutionalization of Public Service Commissions.28 These Commissions were

69 Ibid, Reg. No. 86

70 Ibid, Reg. No. 87

71 Ibid

72 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

73 Ibid

74 Infra, at pp.2-3

75 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985): Enforceable legal rights against the Crown by public officers in respect of matters arising out of the course of employment were extremely limited. Legally, the Crown's power to dismiss its employees without notice, without a hearing, and without cause became entrenched. Its servants had no remedy at common law certainly not for wrongful dismissal.

76 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

77 See F.A. Hoyos, Barbados, A History from the Amerindians to Independence, Macmillan Education Ltd., London, 1978, Chap. 16 28 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985) curated out of the English Civil Service Commission, which had been assigned “powers of control over nearly all admissions to the Civil Service”.78 It naturally followed that its role was to protect “the English public from unfit appointees”79 by testing the qualifications of persons entering the public service.

This was an attempt to decentralize the power had by the colonial Governor in the postemancipation era. It was an attempt to bolster the integrity of the Public Service by giving it competency outside the ambit of the political executive. Sir Maurice Holmes noted that “with the broadening of the constitutional bases of those colonies, steps will need to be taken to safeguard civil servants against the introduction of political considerations in matters affecting their professional careers;80 such that “no question of nepotism or political wire pulling can arise.”

81 This ideological underpinning made it clear that the Commission was not seen as an instrument of management but rather as a body to protect public officers and the public service against political control and influence. Seemingly, it was effective as Cheltenham noted that by 1954 the impartiality of the Public Service Commission was well established.82 It equally reflected Trevelayn’s and Northcote’s recommendation to replace patronage in appointments with competitive examinations.83

Cabinet Governments

When Cabinet Government was eventually introduced in 1958, further impetus was given to rationalizing the mechanism for appointing all public officers.84 This appeared to be an attempt to further bolster the independence of Public Service Commissions. In 1962, service commissions for the judiciary and the police were now creatures of statute. Pre-eminently, the constitution of

78 I. Jennings, supra, n. 9 at p. 131

79 B.A.N Collins, “Some Notes on Public Service Commissions in the Commonwealth Caribbean” (1967)

16:I

S.E.S I, at p. 2

80 Sir Maurice Holmes (Chairman), Report of the Commission on the Unification of the public Services of the Public Services of the British Caribbean Area, 1948-49, at p. 43

81 Ibid

82 R.C Cheltenham, Constitutional and Political Development of Barbados, 1946-1966, Ph.D. Dissertation (unpublished) University of Manchester, 1970.

83 Infra pp5

84 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985) the Public Service Commission had also changed. The 1951 Public Service Commission Act was repealed and replaced with a “new” commission which had independent executive power.

It comprised a chairman and not less than three nor more than five other members85 were to be appointed by the Governor "acting in his discretion.”86 Power to make appointments, including appointments on promotion or transfer to public offices; and power to discipline and dismiss public officers; was vested in the Governor General "acting on the recommendation of the Commission.87

The Act, however, did not apply to the Governor's staff, judges of the Supreme Court, Attorney General, Police, Fire Service and certain other officers specified by the Judicial and Legal Services Commission Act.88

Provision was also made for the Commission to delegate its power – the Governor acting on the recommendation of the Commission, may by instrument under the public seal delegate the functions of the Commission to appropriate functionaries.89

Likewise, the Judicial and Legal Service Commission was entrusted with analogous powers and protection though its constitution and jurisdiction differed. Its membership comprised the Chief Justice as Chairman, the Attorney General, the Chairman of the Public Service Commission or his nominee and "not more than two other members.90

The Commission's jurisdiction was limited to the appointment, promotion, transfers,91 dismissal, and disciplinary control92 of Puisne Judges, Crown Solicitor, Magistrates, Registrars, Solicitor General, Assistant to the Attorney-General, Crown Counsel, Legal Draftsmen and Provost Marshal.93

85 S. 3(10 Public Service Commission Act, No. 25 of 1961, Laws of Barbados, 1961, Pt.1

86 Ibid

87 Ibid s.11 a. 12 (1)

88 Ibid, s. 11(3) (a)-(g)

89 Ibid, s 15(1)

90 S 3(1)(2), The Judicial and Legal Service Commission Act, No. 26 of 1961, Laws of Barbados, 1961, Pt.1

91 The Judicial and Legal Service Commission Act, supra, n. 139 at s. 12 (1)

92 Ibid, s. 14(1). Note that under s. 81(1) of the Constitution as amended in 1974 by Act No. 34 of 1974, Puisne Judges are now appointed by the Governor General "on the recommendation of the Prime Minister after consultation with the leader of the Opposition."

93 Ibid, s. 12 and Second Schedule

Again, jurisdiction over these functionaries was vested in the Governor General "acting on the recommendation of the Commission.”94

These changes completed the shift on the locus of control over the Barbadian Public Service.95 The Barbadian Public Service, though shaped by the law, customs, and practices of its British mentor, was now placed in the hands of a native political and administrative class.96 Most importantly, effective strides were made to establish the civil service as independent from and impartial to the political directorate.

Independence Developments: Constitutional Provisions and General Orders

Barbados’ contemporary legal framework has seen the regulation of the public service ascend from mere “directions”97 to Constitutional Status. Sections 89-106 of Barbados’ Independence Constitution98 absorbed, with some amendments, the provisions above-mentioned, and more, for service commissions.

The Constitution also enshrined fundamental rights and freedoms for all persons, including public officers in respect of their freedom of expression,99 movement,100 assembly and association.101

It introduced a local Privy Council and gave it jurisdiction to hear appeals of aggrieved public officers from decisions of service commissions. The Governor-General was required "so far as is practicable to attend and preside at all meetings of the Privy Council.102 The Constitution also sought to define those persons deemed to be public officers.103

This constitutional regulation has been bolstered by the General Orders. These orders provide, inter alia, the appointment, recruitment, transfer and secondment for public officers; and salaries,

94 Ibid, s. 12(1); s. 14(1).

95 Kenny Davis Anthony, ‘Aspects of the Law of the Barbados Public Service’ (LLM thesis, University of the West Indies 1985)

96 Ibid

97 Shenton v Smith (1895) App. Cas. 229

98 The Barbados Constitution Order, 1966.

99 Ibid, s. 20(1) (2) (c).

100 Ibid, s. 22(3)(f).

101 Ibid, s. 21(1) (2) (c).

102 Ibid, s. 77(2)

103 Ibid, s. 117(1)(7) allowances and other payments. Saliently, it makes a differentiation between different types of public servants, an area which will be explored in a later chapter.

III. Freedom of Expression in the Commonwealth Caribbean

Commonwealth Caribbean constitutions are a primary source of human rights guarantees.

104 Flowing naturally from the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), which Commonwealth Caribbean constitutions are substantively modelled after, the Bill of Rights found in Barbados’ Constitution bares no exception when we seek to characterize those that are “conventional”.

105 These Bills of Rights contain two features:

The opening section is a general guarantee of rights that typically begins,

“Whereas every person in… is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely…”

The enumeration of specific rights such as the right to life, personal liberty, freedom of expression, conscience, movement, and assembly and association; protection from discrimination, slavery and forced labour, inhuman treatment, deprivation of property and arbitrary search or entry are found in the detailed section of the Constitution, thereafter with limitations to those rights specified.

The right to freedom of expression is contained in section 20 (1) of the Constitution of Barbados. It reads as follows:

“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference…”

Whilst this clause does not exhaustively define freedom of expression, the words “opinions”, “ideas”, “information” and “communication” can be seen to emphasize expression as an

104 Robinson, Bulkan & Saunders: Fundamentals of Caribbean Constitutional Law (1st edn, Thomson Reuters 2010)

105 Tyrique Wilson, 'A Constitution Fit For Changed Status' The Nation (Barbados, 9 November 2021) ideological vehicle and not expression merely as an act or behaviour.106 It seeks to preserve what is vital to a free society wherein the right to speak, to propagate and to circulate ideas belong to everyone and will be protected for everyone subject only to the qualifications under the very article itself. 107

The rationales for freedom of expression may therefore be placed within 3 categories, according to Demerieux,108 namely: the consequentialist or utilitarian, those premised on individual realization, and those which see freedom of expression primarily as a part of the structure or process of democratic government.109 The latter will be the focus of this section.

The “democratic government” justification conceives freedom of expression as the indispensable condition for self-government and the functioning of democratic institutions”110 This justification may be more specifically categorized as “political expression”.

This rationale acknowledges the role of free expression in promoting democracy and good government – it enables the public to be informed, it allows the dissemination of facts, ideas and comment, themselves shaped by free discussion, it enables the electorate to make informed choices, and it even provides an outlet for hostilities that might otherwise erupt in more dangerous ways. In Hill v Church of Scientology111 the Canadian Supreme Court cautioned that:

“Without this freedom to express ideas and to criticize the operation of institutions and the conduct of individual members of government agencies, democratic forms of government would wither and die...”

Further, in Hector v A-G of Antigua and Barbuda112 Lord Bridge noted:

“

In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.”

106 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

107 Janet Jagan And Another v Linden Forbes Sampson Burnham (1973) 20 WIR 96

108 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

109 E. Barendt, Freedom of Speech (Oxford: Clarendon 1985) Ch. 1

110 Per, Cardozo J., in Palko v Connecticut 302 U.S. 319 (1937)

111 (1995) 126 DLR (4th) 129

112 [1990] 2 AC 312

Both dicta illustrate the courts’ position that the right to freedom of expression serves democracy by allowing the articulation of views of groups within society and by the recognition of the need to have governmental authority offered up to scrutiny.113

Limitations

It is trite to say that no right is absolute.67 Constitutionally guaranteed rights and freedoms, although enormous, are limited in circumstances where one, in exercising his/her right, prejudices those of others. Evidently, the right to freedom of expression, not excluding political expression, garners no exception when we envisage those circumstances where the law might limit the extent to which one can exercise a right.

The statement of the rights in the conventional model is usually followed by a limitations clause. In the Barbados Constitution, the limitation clause appended to the right to freedom of expression reads as follows:

“

(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; or

(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts or regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or regulating public exhibitions or public entertainments;

(c) or that imposes restrictions upon public officers or members of a disciplined force.”

113 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992)

The presence of the clause is significant when specific regard is had to political expression as the courts are often made to engage analyses of the “reasonableness” of its fettering. The case of Vieira Communications Ltd v A-G of Guyana114 is instructive.

In that case, the appellant VCT, a company incorporated in Guyana, operated a television broadcast network.115 It applied to the National Frequency Management Unit (NFMU), a public corporation, for a licence to operate a commercial FM radio station. The NFMU failed to acknowledge receipt of VCT's application, and no reason was advanced for its refusal to reply. 116

The NFMU later detected an audio transmission being broadcasted on 100.5 MHz. It investigated and found that the broadcast was being transmitted from an antenna belonging to VCT. Thereafter, the Prime Minister wrote to an officer of VCT stating that the 'the question of opening up radio (audio) to various non-Governmental and private organisations is a matter being pursued even now by … the Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting Legislation117 . That officer of VCT was charged118 with the offence of unauthorised use of wireless telegraphy, contrary to s 63(3) of the Post and Telegraph Act.

VCT then commenced proceedings by originating notice of motion in the High Court, seeking, inter alia, a declaration that the refusal by the respondents to grant a licence to the appellant for radio broadcasting without constitutional justification, while at the same time licensing or permitting state owned corporations to broadcast, was a contravention of the appellant's right to equality of treatment and protection of the law as provided by Article 40 of the Guyanese Constitution. A declaration was also sought that the treatment of the appellant in a discriminatory manner contravened the appellant's fundamental rights guaranteed by Article 149. This motion was dismissed and VCT appealed.

The Board in the Privy Council held that in all the circumstances, the NFMU had discriminated against the appellant by failing to grant it a radio broadcast licence while it granted licences for the operation of three government controlled radio stations, in contravention of its fundamental rights guaranteed by Articles 149D(1) and (2) of Guyana’s Constitution.

114 (2009) 76 WIR 279

115 Ibid at 280

116 Ibid

117 Ibid

118 This charge was later dismissed.

It further held that the radio stations in Guyana which utilised the electromagnetic spectrum were government-controlled radio stations. There were no other such radio stations in Guyana. The government-controlled radio stations had exclusive control of radio broadcast services to the people of Guyana. That constituted a monopoly on radio broadcasting in Guyana. Accordingly, the monopoly enjoyed by the government in radio broadcasting was not only unlawful but significantly restricted VCT and the people of Guyana in their ability to receive and to communicate ideas and information without interference, such restrictions not being reasonably justifiable in a democratic society. Further, the monopoly created by the government impacted unlawfully on the fundamental right of the appellant and of the people of Guyana, since the right to freedom of expression to communicate and receive information and ideas was protected not only in relation to information or ideas that were favourably received or intended to be disseminated by the government or regarded as inoffensive, or as a matter of indifference but also to those that were perhaps contrary to or different from or opposed to approved government ideas, information and119 communications that offended, shocked or disturbed;120

A cursory glance at the case law shows us that governments in the Commonwealth Caribbean often attempt to censor or monopolize the right to political speech. Perhaps, they fear the exposing of the operations of public institutions, and elected officials as it has been used as a tool through which politicians protect their own self-interests.

“

121 In fact, Professor DeMerieux notes:

…the predominance of political figures in defamation actions by itself suggests that the law of defamation is a specific tool in the hands of politicians, a matter with serious ramifications for expression as political debate.” 122

The next chapter will explore the limitations on the right to political expression, specifically for public servants, in light of the above-mentioned.

IV. Legal Restrictions on Freedom of Political Expression for Civil Servants

The unique position of the public servant, as a worker of the state, has brought him a range of legal and administrative restrictions which limit the ability of the public officer to exercise the civic

119 Ibid at 282

120 Ibid at 283

121 Janet Jagan And Another v Linden Forbes Sampson Burnham (1973) 20 WIR 96

122 Margaret Demerieux, Fundamental Rights in the Commonwealth Caribbean Constitutions (1992) rights to which private sector workers are entitled.123 This was the position held by Vincent Floissac CJ, who pointed out in the Court of Appeal, that in every truly democratic society, the public officer or civil servant holds a unique status in many respects. As the servant or agent of the State he enjoys special advantages and protections and correspondingly must submit to certain restrictions. Their special position is recognized in the existence of a special chapter in the Constitution containing provisions relating to them and to the express provisions in sections 12 and 13 authorizing restrictions on the freedoms contained therein.124

The preservation of the impartiality and neutrality of civil servants has long been recognised in democratic societies as essential to the preservation of public confidence in the conduct of public affairs. It has been noted that, “the public interest demands the maintenance of political impartiality in the civil service and confidence in that impartiality as an essential part of the structure of government in this country”125

The importance of these characteristics lies in the necessity of preserving public confidence in the conduct of public affairs.126 That is the primary view for some restraint on the freedom of civil servants to participate in political matters and is properly to be regarded as an important element in the proper performance of their functions.

Salient are those restrictions which seek to regulate the freedom of public officers to communicate freely, especially in matters of a political and administrative character and those which more broadly control the exercise of political rights and freedoms.127

Political rights, in this context, includes the right to vote in any election and to seek election to any public office.128 It also includes the right to be a member of a political organization, and to hold office therein; the right to attend and participate in political meetings, rallies and conventions; and

123 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20 78 49 WIR 70 at page 80

124 (1998) 53 WIR 131 at 138

125 Hood Phillips, Constitutional and Administrative Law (5th edn.1973) p 299

126 Ibid

127 Hood Phillips, Constitutional and Administrative Law (5th edn.1973) p 299

128 Kenneth Kernagahan, Ethical Conduct: Guidelines for Government Employees, Toronto: Institute of Public Administration of Canada 1965 at pp 26

129 campaigning for or against political parties or candidates which includes, inter alia, the making of financial contributions; door to door canvassing and distribution of campaign materials.

In restricting the civic rights of public officers, Caribbean Governments have used three approaches, namely:

• Restrictions imposed by legislation allegedly within the parameters set by the constitution

• Restriction Imposed by “General Orders” or “Departmental Orders”

• Restrictions combining the two foregoing

In the case of Barbados, a combination of restrictions imposed by legislation130 and by “General Orders is had.

The Code of Conduct and Ethics in the Public Service Act Barbados131 provides, “officers shall not contribute to any newspapers in Barbados or elsewhere on questions that can properly be called political or administrative, but may furnish articles upon subjects of general interest”.

132 And further that, “Officers shall not give broadcast talks or engage in any discussion that is being broadcast on any subject that may properly be regarded as of a political or administrative nature, without the prior permission of the Minister concerned.”

The General Orders similarly provide:

129 Ibid

“Officers are forbidden to be editors of newspapers or directly or indirectly to take part in the management of newspapers. They are also forbidden to contribute to any newspaper in Barbados or elsewhere on questions which can properly be called political or administrative though they may furnish articles upon subjects of general interest

133

Officers and employees are forbidden to give broadcast talks or to engage in any discussion which is being broadcast on any subject which may properly be regarded as of a political or administrative nature without the prior permission of the Minister concerned.”

130 Public Service Act Barbados

131 CAP. 29 of the Laws of Barbados

132 Ibid s 24(b)

133 General Orders Barbados s. 3.11

134 Ibid s. 3.14

134

It further provides that officers and employees are expressly forbidden to participate actively in politics, including the following:

• being adopted as a parliamentary candidate;

• canvassing on behalf of any party or candidate for election to the House of Assembly;

• acting as agents or sub-agents for any candidate for election;

• holding office in party political organisations; and speaking at political meetings.135 However, a concession is granted to “casual employees” who are permitted to speak at political meetings and stand for election to the House of Assembly subject to the condition that those employees shall not engage in any political activity while on duty or on Government premises and, in the event of the election of any such employee to the House of Assembly, he shall immediately vacate his appointment in the public service.136 The legislation does not contemplate a situation where the employee is defeated and wishes to return to his/her former post.

Casual employees are persons who are employed on a casual basis in the public service and who are not public officers within the meaning of the constitution. A “public officer” means the holder of any public office and includes any person appointed to act in any such office.137 Thus, casual employees are those not appointed to act in a public office.

It has been noted that the impact of this concession is insignificant as this category of worker is not numerically large and is distant from the day-to-day administrative process.138 Further, their skill set is low, and their posts are vulnerable to abolition by administrative fiat for the posts, and their holders do not come under the protection of any Service Commission.139 These regulations owe their origin to the days of colonial control and administration.140 They were authorized by the local Governor, who was the official head of the public service, and exercised “final local discretion”141 in matters pertaining to the service.

135 Ibid s. 3.18.1

136 Ibid s. 3.18.2

137 Chapter X The Constitution of Barbados

138 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

139 Ibid

140 L. Barnett, The Constitutional Law of Jamaica, 1977, at 103

141 Ibid

The regulations were detailed and virtually formed an internal administration code. They dealt with matters of interpretation of terms, the condition of service, disciplinary procedure, vacation leave, advances, promotions and other ancillary matters. Despite independence and other forms of constitutional advancement in the region, the origin of the regulations has imbued the extant regulations with a colonial character and bias. In practice, this has meant that the vestige of the law-and-order orientation of the colonial Civil Service continued to influence the existing regulations.142 Nowhere is this more apparent than in the restrictions under review.143

This apart, it is to be observed that these General Orders do not expressly prohibit membership of political parties by public servants. Such expression of the prohibition may well be unnecessary.144 For one, the Orders seek to prohibit “political activities.”145 The term itself is nowhere defined. One can therefore surmise that if political activities are generally prohibited, then a fortiori, membership of political parties is also intended to be prohibited, since that too must be embraced within the definition of political activity.146

In any event, the restrictions discussed above are so total and all-embracing that membership of a political party is effectively rendered superfluous.147 In other words, having become a member of a political party or organization, the public servant cannot exercise the rights of membership, for these rights are themselves heavily circumscribed.148 If mere engagement or association in political activities invites disciplinary measures, then it seem that membership cannot be seriously contemplated.149

Nonetheless, the foregoing provisions may still be analysed in their relation to the freedom of expression as guaranteed by Barbados’ Constitution. It was noted in a previous chapter that Caribbean governments may derogate from constitutionally guaranteed rights and freedoms. In the Constitution of Barbados, derogation can be had only where they "be reasonably justified" in a

142 E. Jones, ‘The Tendencies and Change in Caribbean Administration Systems’ (1975) 24 S.E.S 239

143 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

144 Ibid

145 See marginal note to para. 3.18 of Barbados General Orders

146 Kenny Anthony, ‘Legal Restraints on the Civic Rights of Caribbean Public Officers’, (1983) 6:1 Bulletin of Eastern Caribbean Affairs 20

147 Ibid

148 Ibid

149 Ibid democratic society. The next chapter will therefore analyse whether the above-mentioned legislative provisions which restrict freedom of expression are maintainable as intra vires of the constitution.

V. Analysing the Legal Restrictions on Freedom of Political Expression

i) De Freitas

De Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing150 has been regarded as the leading authority in the Commonwealth Caribbean on the constitutionality of limitations on fundamental rights and freedoms 151 This case concerned a civil servant’s participation in certain [political] demonstrations in September and October 1990 against government corruption in Antigua and Barbuda. In 1990 the appellant was an Extension Officer in the Ministry of Agriculture, Fisheries, Lands and Housing of Antigua and Barbuda. In that year a Commission of Inquiry was held in Antigua relating to the transhipment into Antigua of a consignment of guns. In the course of the Inquiry various allegations of Government corruption were made. Some of these allegations were directed at the Minister of Agriculture, Mr. Hilroy Humphreys.

The appellant admitted in an affidavit that on 24th and 25th September 1990, after the Inquiry and while he was on vacation, he was one of several persons peacefully picketing the Headquarters of the Ministry. Some of the placards displayed by the appellant were critical of Mr. Humphreys.

The Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing, who is the first respondent, immediately claimed that the appellant was acting in breach of the restraints imposed on civil servants by section 10(2)(a) of the Civil Service Act of Antigua and Barbuda and threatened to refer the matter to the Public Service Commission for disciplinary action. This Act 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”.

150 (1998) 53 WIR 131

151 Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis SKBHCV2018/0254 at 11

Section 12(4) of the Antiguan Constitution provides the right to freedom of expression. It further provides a clause for derogation which states;

“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 -

(b) 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 court therefore sought to determine whether the prohibition in s10(2)(a) was ultra vires with section 12, which devolves the right to freedom of expression.152

Although recognizing the special position of public servants, and that public interest demands the maintenance of political impartiality in the civil service, the court opined, “the general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms.”153 The courts emphasized the need that a “proper balance be struck between the freedom of expression and the duty of a civil servant properly to fulfil his or her functions”154

152 (1998) 53 WIR 131 at 138

153 Ibid

154 Dickson C.J.C. in Re Fraser and Public Service Staff Relations Board (1985) 23 D.L.R. (4th) 122

The courts agreed with the dicta in Re Fraser and Public Service Staff Relations Board155156 stating;

“The act of balancing must start with the proposition that some speech by public servants concerning public issues is permitted. Public servants cannot be ‘silent members of society'… A blanket prohibition against all public discussion of all public issues by all public servants would, quite simply, deny fundamental democratic rights to far too many people.”

It further noted that all expressions critical of the conduct of a politician cannot be forbidden. 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.

Thus, restrictions on freedom of expression, for public servants, may only be consistent with the Constitution where they are:

1. Reasonably required for the proper performance of their functions.

2. Reasonably justifiable in a democratic society.157

When regard was had to section 10, the board was of the opinion that it was a blanket restraint on all civil servants from communicating to anyone any expression or view on any matter of political controversy158 and was therefore excessive.159 The court stated this rule 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.160 Thus, section 10(2)(a) could not survive as it stands. In coming to this conclusion, the court adopted a “three-fold”161 criteria from Nyambirai National Social Security Authority which ought to be satisfied where the legislature seeks to restrict fundamental rights and freedoms, namely:

155 (1985) 23 DLR (4th) 122 at page 131

156 (1998) 53 WIR 131

157 Section 12(4) The Constitution of Antigua and Barbuda

158 (1998) 53 WIR 131 at 139

159 Ibid at 140

160 Ibid at 141

161 (1998) 53 WIR 131 at 144 i. the legislative objective is sufficiently important to justify limiting à fundamental right; ii. the measures designed to meet the legislative objective are rationally connected to it and; iii. the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

The Board noted the third fold, which was a question of proportionality.162

Their Lordships accepted that the first two of these criteria could be met in the case of civil servants once it is noticed that their special status, with its advantages and restraints, is recognized as proper in the administration of a free society.163 However, the third criterion raises a question of proportionality and could not be satisfied. This was because the blanket approach taken in section 10 imposes the same restraints upon the most junior of the civil servants as are imposed upon the most senior.164

The appeal was therefore allowed; the appellants showed that the restraint, with its qualification, was not reasonably justifiable in a democratic society.128 Section 10 of the Act was deemed unconstitutional.

ii) Fraser v Public Service Staff Relations Board

Regard may also be had to Fraser v Public Service Staff Relations Board.165 Here, the court noted the need for a balance to be struck between the public officer’s freedom of expression and the government’s desire to maintain an impartial and effective public service.166

This was especially so given the fact that democratic systems in the Commonwealth Caribbean are deeply rooted in, and thrive on, free and robust public discussion of public issues. Thus, as a rule, all members of society should be permitted, and encouraged, to participate in that discussion.167

162 Ibid

163 (1998) 53 WIR 131 at 144

164 (1998) 53 WIR 131 at 144

165 [1985] 2 S.C.R. 455.

166 Ibid at [30]

167 Ibid at [37]

The court emphasized that an absolute rule prohibiting all public participation and discussion by all public servants would prohibit activities that no sensible person in a democratic society would want to prohibit. The Supreme Court accepted that a public servant is required to exercise a degree of restraint in his or her actions relating to criticism of government policy, in order to ensure that the public service is perceived as impartial and effective in fulfilling its duties.168

iii) Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis

The more recent case of Leon Natta-Nelson v The Attorney-General of St Christopher and Nevis169 is equally instructive on the point. The claimant was employed as an accountant in the Customs Department in the Ministry of Finance. He had political aspirations and wished to compete as a candidate for the St. Kitts-Nevis Labour Party (the Labour Party) against the Prime Minister, who was the incumbent representative for the constituency of St. Kitts. However, the claimant claimed that the provisions of Rules 36 and 38 of Public Service (Conduct and Ethics of Officers) Code, SRO No. 9 of 2014 (the Code) stood in his way. These provisions similarly provided the General Orders and PSA of Barbados, above mentioned.

The court was therefore made to decide whether these provisions were intra vires section 3(b) of the Constitution of St. Kitts and Nevis, which devolves the right to freedom of expression, and section 12(b) which provides that restrictions may be had on public officers where they 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 Court followed the decision of Osborne v Canada (Treasury Board), 170 noting that legislation that “bans all partisan-related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the hierarchy of the public service” is unconstitutional.

It equally followed the decision in De Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Land and Housing, 171 which held that a “blanket restraint on all civil servants from communicating to anyone any expression of view on any matter of political controversy” was excessive. It further noted that in De Freitas, the court ruled that public officers must be able to express their views about politicians and their policies and to participate in and run for political office.172 Thus, Rules 36 and 38 of the Code were deemed unconstitutional.173

172 SKBHCV2018/0254 at [86]

173 Ibid at [84]

Discussion

The case of De Freitas established the test to be used when a court seeks to determine whether limitations on rights are constitutionally intra vires. This “three-fold” criteria make it that any restrictions on fundamental rights and freedoms are compatible with the constitution if: i. the legislative objective is sufficiently important to justify limiting à fundamental right; ii. the measures designed to meet the legislative objective are rationally connected to it; and iii. the means used to impair the right or freedom are no more than is necessary to accomplish the objective.

In De Freitas, Fraser and Leon Natta, the courts conceded that laws which restrict freedom of political expression on civil servants is prima facie justifiable at law. This view is rooted in the ideology that an effective civil service must not be politically partial, thus, degree of restraint in his or her actions relating to criticism of government policy must be had.174 Perhaps may be better explained using the doctrine of separation of powers.

Regarding the delineated provisions of the PSA and the General Orders, it is evident that they inherently and excessively limit the protection of freedom of expression the Constitution of Barbados. However, an analysis that employs the separation of powers doctrine may be used to justify their existence.

A standard perception of this doctrine posits it as a principle of good governance, partly comprising the rule of law, which ensures the separation of executive, legislative and judicial powers. Its proponents seek to ensure that no one person or body is permitted to exercise more than one of these powers. Despite it being a fundamental component in the Westminster system of government we enjoy to this day, this superficial view often disguises its brevity. An oftenoverlooked tenet of this doctrine is the intra-branch separation of the executive.

A professional civil service is the cornerstone of an effectively performing public sector. A professional civil service serves the interests of the state, not the incumbent government.175 The civil service is required to be politically impartial with equal commitment to serve governments

174 [1985] 2 S.C.R. 455.

175 Tyrique Wilson ‘Points of Law: Civil Servants in Politics’ Barbados Today (Barbados, 25 April 2022) 16 of all political persuasions. Politicisation is generally seen as the primary impediment to successful administrative development as it runs contrary to these principles.176

Thus, it follows that the intra-branch separation of the executive mandates a separation between the political directorate (Members of Cabinet) and “ordinary” members of the civil service. Caribbean constitutions have attempted to establish this separation via mechanisms that provide heightened security of tenure aimed at mitigating political influence on those public servants. This notion was affirmed in Thomas v AG where it was explained that these chapters are aimed at “insulating members of the civil service from the political influence exercised directly upon them from the government”.

This was credence in De Freitas¸ which was followed by Leon Natta, where the court recognized that the special position of public servants, and that public interest demands the maintenance of political impartiality in the civil service, it becomes axiomatic that the delineated provisions of the PSA and the General Orders are mere legislative expressions of this doctrine.

Notwithstanding the foregoing analysis, Commonwealth courts have recognized and understood that if we are not to jeopardize democracy, of which political participation is a fundamental component, it would be incongruous to allow “blanket” restrictions such as those contained in our PSA and General Orders to preclude all civil servants from engaging any political activity. As it was said in Fraser and followed by Leon Natta, “our democratic system is deeply rooted in, and thrives on, free and robust public discussion of public issues. As a general rule, all members of society should be permitted indeed encouraged, to participate in that discussion”.

Thus, justifications properly founded do not preclude laws from being deemed unconstitutional, particularly where limits on constitutionally guaranteed freedoms are excessive and unreasonable. Notwithstanding the above-mentioned, a balance ought to be struck between the public officers’ freedom of expression, and assembly and association, and the Government’s desire to maintain an impartial and effective public service.

It is for this reason that the courts concluded that although these justifications are legally valid, they fail on the element of proportionality. That is to say that the limit on civil servant’s freedom of expression, imposed by PSAs and General Orders, is excessive and unreasonable to maintain an impartial civil service. Thus, any rule which prohibits all public participation and discussion by all public servants is not in congruence with a democratic society. These comments were made bearing in mind a point made by Redhead J. who noted that in the United Kingdom there are classes of civil servants related to the seniority of the posts which they fill and a distinction is made between the classes as to the extent of any restraints imposed upon them in regard to their freedom of political expression.177 Simply put, restrictions made on the right to freedom of expression must be directly proportional to ones rank (and functions) in the civil service.

This reasoning must now be applied to the PSA and General Orders in Barbados. When regard is had to the relevant provisions of the Public Service Act of Barbados and the General Orders, the provisions restricting the freedom of expression bare almost complete semblance to those contemplated in De Freitas and Leon Natta-Nelson. It follows those sections 24(b) of the PSA and sections 3.11 and 3.18.1 of the General Orders would equally be deemed unconstitutional by local courts. They put an unreasonable and excessive restraint on civil servants’ ability to exercise their right to freedom of expression, with one caveat. It is arguable as to whether section 24(e) of the PSA and section 3.14 of the General Orders would be so deemed. These provisions have not dealt a death blow to civil servants’ participation in political activity. They allow the expression of political views with the prior permission of the Minister concerned. If a Minister were to unreasonably refuse permission, redress can be had via an entirely separate, administrative, action. Evidently, these provisions do not put a ‘blanket restrain on all civil servants from expressing views on political matters.’ In no absolute terms, it follows that section 24(e) of the PSA and section 3.14 of the General Orders may withstand judicial scrutiny.

VI. A Case for Reform

Although civil servants enjoy a unique position in the Westminster system of government; a characteristic of which sees him endure legal restrictions on the exercise of his civic rights, the Privy Council in Fraser and De Freitas, and the Eastern Caribbean Supreme Court, have asserted that legislation which puts an absolute prohibition on all civil servants right to engage political speech is disproportionate and therefore unconstitutional. The legislature’s desire to maintain the independence of the ordinary civil servants from the political directorate, albeit justified when regard is had to the separation of powers doctrine.

If freedom of expression is not to be excessively circumscribed, by extension if democracy is not to be jeopardized, it is imperative that we revisit and amend structural barriers to equitable participation, especially where they are constitutionally offensive. The following recommendations are proposed:

i) The Moldovan Solution

The Moldovan Civil Servants’ Code of Conduct lends us a helping hand on this issue. Article 5 of this Code prohibits public officers from engaging in political activity only during the performance of their duties. It is therefore submitted that the delineated prohibitions in Barbados’ PSA and General Orders may remain with the added precondition that a public officer is simultaneously performing his/her duties. This can be bolstered with a provision which demands that civil servants’ political affiliations do not influence their conduct and decisions.

Ostensibly, however, the Moldovan solution may not be able to remedy the prohibition on civil servants’ capacity to be adopted as parliamentary candidates. A parliamentary candidate remains a parliamentary candidate until an election is concluded, or, until he/she withdraws. Any attempt to separate an active civil servant from the continuous act of being a parliamentary candidate would be an exercise in futility. Incidentally, a remedy can be found within Section 3.18.2 of the General Orders. This provision can be amended for an application to all civil servants.

ii) The Solution in Canada and the United Kingdom

In Canada, and the UK, restrictions on fundamental rights do not apply to all grades and positions as is the case in Barbados. Rather, restrictions on political rights are based on position, grade and influence on the public officer. The same may equally be said for teachers. This approach recognizes that certain sections of the public service such as messengers and typists are far removed from policy and as such do not require political impartiality to the extent of higher ranked public servants such as permanent secretaries. In fact, this type of approach was alluded to in Leon-Natta Nelson where the courts expressly mentioned that legislation that “bans all partisan related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the hierarchy of the public service” is unconstitutional.178

As democracy grows and transforms, it is necessary for Commonwealth Caribbean jurisdictions to amend laws which are constitutionally incompatible, particularly where they affect many persons on something as fundamental as democratic participation. These practical solutions strike a proper balance between the limit on civil servants’ freedom of expression whilst maintaining a reasonably separated executive; and promote necessary participation in democratic processes.