04 September, 2010
The FCO legal advisers propose to take away the right of public servants to express a political opinion. This fundamental right is found in section 12 of the draft Constitution. It is the provision for the protection of freedom of expression: In colonial constitutions the fundamental right was traditionally constrained in relation to public servants. The thinking was that if you are working for Government, you should not be permitted to come out and express views opposed to the Government of the day.
The way that the right has traditionally been curtailed is by placing in General Orders, the contractual document binding all public servants, a term prohibiting the public or private expression of any political opinion by any public servant. This was so draconian and absolute a restriction of a fundamental right that it has long been the subject of interpretation by the courts.
Restrictions on permanent secretaries and other confidential advisers of government ministers of their public expression of political views may be justifiable. Ministers need to be confident that their highest advisers will not appear suddenly on a political platform betraying the confidences previously shared. The same does not apply to the lower ranks of the public service. It is generally understood in the
West Indies today that a blanket ban on public expression of political views by the general mass of public servants is highly objectionable.
The earlier provision in the Constitution of Montserrat was that the prohibition on expressing a political opinion must be “reasonably justifiable in a democratic society”. Such a wording has been held by the courts of the
West Indies to make it illegal to restrict the lower ranks of the public service from expressing their political opinions.
The draft Constitution proposes to remove the need for the prohibition to be reasonably justifiable in a democratic society. It is to be replaced by a need for Government to show only that the restriction “is reasonably required for the purpose of ensuring the proper performance of their functions.” This is clearly a lower threshold than previously. And, the higher test has been removed without any explanation.
The intention appears to be to water down the previously enjoyed right, with a view to making it easier to gag teachers and public servants through General Orders. There is absolutely no justification for this proposed curtailment of this fundamental right of all Montserratians to freedom of expression.