Public Service Act of 2011 may be unconstitutional

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Attorney General Vincent Byron.
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Attorney General Vincent Byron.

The Team Unity Government of St. Kitts and Nevis, led by Prime Minister Timothy Harris,  is taking the necessary measures to review the Public Service Act of 2011 to determine if it infringed upon individuals’ fundamental rights to freedom of expression and freedom of association. If it does, that would mean the Public Service Act of 2011 may be unconstitutional.

A sitting High Court Judge recently declared that those regulations were unconstitutional after they were challenged in the court by an officer of the St. Kitts and Nevis Customs and Excise Department. That officer sought a declaration to determine that he was entitled to take active part in a political organization and more particularly to run for elected office while being a civil servant, as part of his constitutional rights to freedom of expression and freedom of assembly.

The ruling exposed the deficiencies within the Regulations. Statutory Rules & Orders (SRO) #8 to #11, which give effect to the 2011 Act, were passed in 2014.

Speaking at last night’s Community Consultation town hall meeting, Attorney General Vincent Byron, stated Statutory Rules & Orders #9 of 2014 with respect to Public Service (Conduct and Ethics of Officers) Code (Regulations 36 and 38) “prohibited the involvement by any civil servant in public political activities.” This meant that a civil servant should not participate on a political platform or engage in political activities.

Byron said the court has said simply that this blanket prohibition is wrong. “We have accepted the court’s decision, which means that no one should be prevented from carrying out their fundamental rights that are set out in the Constitution.”

However, Byron said that the court also recognized that there should be limits in regard to this legislation.

“If you are a messenger or a clerk that does not have to be involved in decision making and have sensitize information then the law should be able to allow you to participate openly in political activities. But the law would recognize that certain classes of public servants should be and can be limited in what they can do, and so if you are a permanent secretary or a director or a senior public servant, those categories of public servants should be limited,” the attorney general said.

Byron said over the next few weeks, the Government will establish categories of public servants who should be limited in terms of their involvement in political activities. He added, “We will determine that if they want to participate they will do so properly. They should not be having access to private and confidential government information on a minister and then go on a platform and talk about it. It doesn’t make sense and the Constitution grants us that flexibility.”

Opposition Leader Dr. Denzil Douglas has since admitted that he knew the regulations introduced in 2014 were in fact unconstitutional.

 

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