De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing
| Jurisdiction | UK Non-devolved |
| Court | Privy Council |
| Judgment Date | 1998 |
| Year | 1998 |
| Date | 1998 |
Antigua and Barbuda - Constitution - Fundamental rights and freedoms - Freedoms of expression and assembly - Statutory prohibition on communication by civil servants of information or opinions on politically controversial matters - Whether unconstitutional -
The applicant, who was a civil servant, participated in peaceful demonstrations against government corruption. The permanent secretary of the ministry in which the applicant worked claimed that the applicant had acted in breach of section 10(2)(a) of the Civil Service Act, F1 which forbade the communication by civil servants to any other person of any information or expressions of opinion on matters of national or international political controversy, and interdicted him from exercising the powers and functions of his office pending disciplinary proceedings against him. The applicant applied to the High Court of Antigua and Barbuda for redress under section 18(1) of the ConstitutionF2 for alleged infringement of his constitutional rights under sections 12 and 13, 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 that section 10(2)(a) of the Civil Service Act was unconstitutional and granted the relief sought. The Court of Appeal reversed that decision and affirmed the validity of section 10(2)(a), 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.
On the applicant's appeal to the Judicial Committee: —
Held, allowing the appeal, 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 section 10(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; that 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 proceedings against him contravened his constitutional rights (post, pp. 681C–D F–G, 684E–G, 685A–B).
The following cases are referred to in the judgment of their Lordships:
Attorney-General of The Gambia v. Momodou Jobe [
Broadrick v. Oklahoma (
Council of Civil Service Unions v. United Kingdom, 20 January 1987, Application No. 11603/85,
Fraser and Public Service Staff Relations Board, In re (
G. v. Federal Republic of Germany, 6 March 1989, Application No. 13079/87,
Gooding v. Wilson (
Government of the Republic of South Africa v. The Sunday Times Newspaper [
Minister of Home Affairs v. Fisher [
National Association for the Advancement of Colored People v. Button (
Nyambirai v. National Social Security Authority [
Osborne v. Canada (Treasury Board) (
Retrofit (Pvt.) Ltd. v. Posts and Telecommunications Corporation [
Thappar (Romesh) v. State of Madras [
Vogt v. Germany (
The following additional cases were cited in argument:
Attorney-General v. Antigua Times Ltd. [
Hector v. Attorney-General of Antigua and Barbuda [
Appeal (No. 42 of 1997) with leave of the Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda) by the applicant, Elloy de Freitas, from the judgment and order of the Court of Appeal (Floissac C.J., Liverpool and Singh JJ.A.) on 3 July 1995 allowing an appeal by the respondents, the Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing, the Public Service Commission and the Attorney-General of Antigua and Barbuda, from the judgment of Redhead J. delivered on 26 February 1993 in the High Court, whereby, inter alia, he had declared section 10(2)(a) of the Civil Service Act to be unconstitutional, and had ordered the interdiction of the applicant by the permanent secretary to be quashed and the intended disciplinary proceedings against the applicant by the commission to be discontinued. The Court of Appeal had affirmed the constitutional validity of section 10(2)(a) of the Civil Service Act, and of the interdiction and intended disciplinary proceedings, which were restored.
The facts are stated in the judgment of their Lordships.
Sydney Christian Q.C. and Justin Simon (both of the Antigua and Barbuda Bar) for the applicant.
James Guthrie Q.C. for the respondents.
30 June. The judgment of their Lordships was delivered by Lord Clyde.
The question in this appeal arises out of the participation by a civil servant in certain demonstrations in September and October 1990 against government corruption in Antigua and Barbuda. In 1990 the applicant 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 applicant admitted in an affidavit that on 24 and 25 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 applicant 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 applicant was acting in breach of the restraints imposed on civil servants by section 10(2)(a) of the Civil Service Act (Laws of Antigua and Barbuda, c. 87) and threatened to refer the matter to the Public Service Commission for disciplinary action. That body is the second respondent. The applicant replied denying that he was infringing that section and referred to the Constitution of Antigua and Barbuda, sections 12 and 13 of which protected his rights of expression and assembly. On 27 September 1990 while he was still on vacation and on 2 October after he had returned to work he made further peaceful demonstrations. After further communications between himself and the first respondent the latter, under a power which he possessed under the
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