It can hardly be a surprise that a woman bold enough to challenge the long entrenched rules of the public service has found herself under attack by the very people who should be most supportive of her demonstrated courage. Let us keep in mind that Dr. Martin Luther King was not always a heroic figure. Neither Malcolm X and Nelson Mandela. Some who stood to gain the most from their struggles ratted on them. Others conspired with their worst enemies to destroy them. And for much less than thirty pieces of silver.
Perhaps it’s a slave thing. But then, consider the following from Dr. King’s I’ve Been to the Mountaintop speech, given the night before his assassination: “You know, whenever Pharoah wanted to prolong the period of slavery in Egypt, he had a favorite formula for doing it. What was that? He kept the slaves fighting among themselves. But whenever the slaves get together, something happens in Pharoah’s court, and he cannot hold the slaves in slavery. When the slaves get together, that’s the beginning of getting out of slavery.”
As for obeying rules and regulations, using “the process” and “changing things from within”—consider this from King’s Letter From Birmingham Jail: “There are two kinds of laws. One has not only a legal but moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’ How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.”
Pointedly, King observed: “Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.”
Which brings us to Elloy De Freitas v the Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and Others, heard by the Eastern Caribbean Court of Appeal in 1998.
While employed by Antigua’s public service, De Freitas participated in peaceful demonstrations against government corruption. The permanent secretary of the ministry in which De Freitas worked claimed he had acted in breach of that part of Antigua’s Civil Service Act that forbade the communication by civil servants to any other person any information or expressions of opinion on matters of national or international political controversy, and interdicted him from exercising the powers of his office pending disciplinary proceedings against him.
De Freitas applied to the high court of Antigua and Barbuda for redress for alleged infringement of his rights under the Constitution, which guaranteed freedom of expression and peaceful assembly and association while permitting restrictions on public officers that were reasonably required for the proper performance of their function, except to the extent that the restrictions were shown not to be reasonably justifiable in a democratic society.
The judge declared the cited section of the Civil Service Act was unconstitutional and granted the relief sought. The Court of Appeal reversed that decision and affirmed the validity of the section, implying into it a provision limiting the scope of the prohibition to situations where the forbearance by the particular civil servant from such publication was reasonably required for the proper performance of his official functions.
De Freitas appealed to the Privy Council, which reversed the decision of the Eastern Caribbean Court of Appeal, on the grounds that “the restraint imposed on civil servants by Section 10(2)(a) of the Civil Service Act was more than was reasonably required for the proper performance of their functions and, although the legislative object of Section10(2)(a) was sufficiently important to justify limiting civil servants’ freedom of expression and the restraint imposed was rationally connected with that objective, a blanket restraint which imposed the same restrictions on the most junior civil servant as on the most senior was disproportionate to that objective and thus not reasonably justifiable in a democratic society.”
Moreover: “Section 10(2)(a) therefore contravened section 12 of the Constitution and its consequent invalidity could not be cured by implying into it words limiting its scope to situations where forbearance from publication was reasonably required for the proper performance of a civil servant’s official functions; and that, accordingly, the interdiction of the applicant and the intended disciplinary proceeding against him contravened his constitutional rights.”
Their Lordships recognized the special position enjoyed by civil servants in a democratic society. They also cited the point made by Justice Redhead, which he took from Hood Phillips, Constitutional and Administrative Law: “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.”
Additionally: “Along with these elements of neutrality and impartiality their Lordships would associate an element of loyalty, in particular to the minister whom the civil servant has been appointed to serve. The importance of these characteristics lies in the necessity of preserving public confidence in the conduct of public affairs. That is at least one justification 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.
“The Court of Appeal took the view that the applicant’s expressions of ridicule and contempt for the minister would not be tolerable in private sector employment if advanced by an employee about his employer. But the analogy is not valid. The minister was not the employer of the applicant; they are both servants of the state. More importantly, the minister is a politician and one necessarily and properly exposed to public opinion. Their Lordships do not find the suggested analogy of assistance in resolving the issue in the present case.The acceptability or otherwise of the applicant’s conduct as a matter of what might be thought proper or seemly is not relevant to the immediate issue of the validity of the restrictions imposed by section 10 of the Civil Service Act.
“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.
“The point was made by Justice Redhead 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. In the Civil Service Act of Antigua and Barbuda a considerable analysis of grades of civil servants is set out in Schedule 1 and it would plainly be practical to devise a comparable system of classification as has been adopted in the United Kingdom. Without some such refinement their Lordships are not persuaded that the validity of the provision can be affirmed . . . It was for the applicant to show that the restraint, with its qualification, was not reasonably justifiable in a democratic society and their Lordships are persuaded that that has been shown in this case.
“For the foregoing reasons it becomes unnecessary to explore the more particular issues relating to the particular proceedings of which the applicant complains. It follows from the view taken by their Lordships on the general issue that the interdiction and the intended disciplinary proceedings contravene the applicant’s constitutional rights.”
By all accounts Elloy De Freitas faced a near insurmountable mountain of trouble when he decided to take on the monolithic government of Antigua, with all its in-house blind supporters, and others in the field of egregiously partisan backwater politics. That he nevertheless persevered is worthy of our endless gratitude, not disdain.
Martin Luther King paid with his life so that black people might share equally with whites the fruits of their labor in America. And now it is the turn of a local young woman to stand up for what she believes. Should she prove victorious, how would that hurt democracy in Saint Lucia? And if the system should swallow her up, who will say the way we live now is in harmony with the freedoms that our Constitution seeks to protect—therefore should be retained at all cost?
At this point I find myself thinking of Mary Rackliffe, Lorraine Williams, Suzie d’Auvergne, Heraldine Rock, Mary Francis, Mary Isaac, Paula Calderon, and now Gina Corneille. Hard as I’ve tried, I seem unable to come up with the name of a boat rocker of recent vintage who was not attached to a vagina!