Reconciling public service neutrality and impartiality with constitutional freedoms in the Commonwealth Caribbean

Abstract

In the main, the Commonwealth Caribbean Constitutions, drafted in the post-colonial 1960s–1970s periods reflect an imposed colonial antecedents and institutional architecture of the British Westminster system of government because of the lack of a deliberate decolonial process and design of Constitutionalism by post-colonial Caribbean leaders, and their British drafting counterparts. Central to this is the inheritance of an ‘impartial and neutral civil service’, that is, civil servants hired to implement the government agenda irrespective of the varying changes in the partisan political officials within the country, established by the Public Service Commissions (PSCs) which are responsible for the hiring, firing, disciplining and general management of public servants. It was thus established to inter alia, shield public servants from undue influence of politicians, ensure policy neutrality, minimize political patronage, remove partisan politics from public administration while establishing merit-based appointments that ensure neutral competence to fulfil the work of the government expertly, and according to explicit, objective standards rather than to personal or party or other obligations and loyalties. Complimentarily, the Civil Service Orders (CSOs) were also introduced to maintain the independence and impartiality of the public service. It strives to ensure that civil servants can exercise independent, impartial and neutral advice and implementation of their work programme to politicians and the wider public. Of most importance to this research though, is that it provides for the prohibition of public servants from engaging in political and partisan activities. However, the CSO has been judicially challenged by civil servants in the Commonwealth Caribbean, with the courts from the 1980s, holding that it infringes on the fundamental Constitution rights and freedoms, such as, but not limited to, freedom of expression, association and assembly. Judicial decisions have increasingly adjudged these blanket prohibitions as unconstitutional, as they prohibit all public servants from expressing their constitutionally protected democratic views, perspectives and praxis within their society, and prohibit them from associating actively with political parties, under the freedom of association. The Judiciary has also subtly advocated for a more tiered approach that still balances the rights of public servants with civil service impartiality through permitting political expression for public servants who may be directly removed or distant from the policy-making decisions. This article will therefore undertake an examination of the Commonwealth Caribbean Constitutional and Legislative frameworks that have underpinned the insulation of public servants by tracing their historical evolution and components and thereafter illustrate through the judicial decisions how the CSO contradicts the fundamental rights and freedoms in the Commonwealth Caribbean Constitutions. It will then seek to illustrate and assess some key lessons emanating from these judicial decisions. Finally, it will draw upon and analyse the United Kingdom's tiered approach to propose reforms aimed at achieving a more symmetrical reconciliation between public servants’ neutrality and constitutional freedoms, in light of the Caribbean judiciary continually striking down these CSOs.