Teachers’ lawyers argue that their fundamental rights were denied
From the Courts
June 28, 2013

Teachers’ lawyers argue that their fundamental rights were denied

High Court judge, Gertel Thom has reserved her ruling on an application made by lawyers for the State to have a claim made by lawyers for three teachers, who resigned their positions to contest the December 13, 2010 elections, struck out.{{more}}

At a preliminary hearing at the High Court on Wednesday, Richard Williams, appearing for the State, argued his application on the basis that the claimants — Elvis Daniel, Addison “Bash” Thomas and Kenroy Johnson — were in contradiction with Article 16 of the 2005 St Vincent and the Grenadines Teachers Union (SVGTU) Collective Bargaining Agreement and section 26 (1) of the constitution.

The claim was filed on February 20, 2013 and the respondents’ application to have it struck out was filed on April 16, 2013.

According to Williams, the claimants, having resigned, cannot compel the defendants to re-instate them to their original teaching posts.

Daniel, Thomas and Johnson, who all ran on a New Democratic Party ticket, were unsuccessful in their election bids.

Williams submitted that it is only the Parliament of St Vincent and the Grenadines, by two thirds in the House, which can permit a public officer to be eligible to be elected as a representative. He further noted that it is only Parliament that can permit public officers to contest elections.

Article 16 of the Collective Bargaining Agreement, which pertains to leave, states: “A member of the Union of at least three years’ standing shall on application be granted leave-of-absence to contest National/General/Local Elections. The leave of Absence shall be no pay leave for a period not exceeding six months. In the event that the member is unsuccessful, that member shall return to his/her original post or one of equivalent status, all benefits intact. The resumption of duty must be at the beginning of a school term.”

Williams described Article 16, as “unfortunate,” as it directly contravenes the entrenched provisions of the Constitution.

“Article 16, in its clear meaning and reading, amounts to the exercise of power by the Executive, which it does not have. That power to allow public officers to run for elections is solely in the hands of a two thirds majority of Parliament.”

According to Williams, the Public Service Commission has been given the sole right, by virtue of the provisions of the Constitution, to determine who it appoints to the public service. He said the claimants’ affidavits reflect, that on the teachers re-application, the Commission cited there were no vacancies at the time.

“My friend is suggesting that because the Executive had made promises to them, that the Public Service Commission has to reappoint them. The Executive can’t make such a promise to fetter the constitutional independence of the commission,” Williams said.

He added there were no “reasonable grounds” for bringing any action by the claimants and noted that Article 16 does not give the right to contest in elections.

“They are trying to enforce Article 16, when it is against the provisions of the Constitution,” Williams stated.

But Ruggles Ferguson, attorney for the claimants, is adamant that Article 16 does not offend Section 26 of the constitution.

“They say yes, we say no!” Ferguson said.

Ferguson said, prior to the general elections in 2010, as required by the Representation of the People’s Act, Nomination Day was November 26, 2010.

“The resignation letters from the claimants were done on November 24, two days before Nomination Day. The application for leave, pursuant to Article 16 of the Agreement, would have been made on November 14 and 15th by the three applicants…,” Ferguson said.

According to the Grenadian attorney, following the application for leave and receiving no responses, the applicants went to the Public Service Commission and it was then on November 23, leave was denied, forcing the men’s resignation.

“Article 16 embraces and enhances democratic rights provided by the Constitution. The fundamental individual rights and democracy in the Constitution.”

He added that the Collective Bargaining Agreement does not say anything about teachers not being able to contest elections and that there are no disciplinary infractions if one contests an election.

Ferguson said Section 11 of the Constitution gives the fundamental right to freedom of association, which states: “Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association.”

Section 26 of the constitution states: “ No person shall be qualified to be elected or appointed as representative or senator if he, subject to such exceptions and limitations by parliament holds or is acting in any public office.”

The attorney was of the view that in relation to Article 16, most of the cases and arguments cited by Williams do not apply to the case. He explained that the purpose of Article 16 is to preserve benefits, pensions and other benefits of public officers who wish to contest elections.

“This is not a civil action that is being brought in the court. This is a constitutional motion…. This deals with fundamental rights and freedom. The court has the authority to fashion any remedy…,” Ferguson said.

According to Ferguson, the Public Service Commission, under the constitution, is simply there to appoint officers to the public service, remove officers, and to exercise disciplinary control over public officers.

“It is in that context, they (PSC) are not subject to directional control of anyone.

“We have three teachers serving in the public service for more than 30 years in the teaching profession and they have chosen to offer themselves as candidates and what happens? As a result of that, they must lose all their benefits? While offering yourself to service, you have sacrificed 30 years in teaching? That can’t be…,” Ferguson declared.

“They were forced to resign. They had no alternative. It would be a sad day that you have the single largest employer (Government) and no one from the largest single employer can participate in the electoral process, then something is fundamentally wrong…” Ferguson said.

Jomo Thomas also represents the claimants.

Justice Thom told both sides that she would have the registrar of the High Court indicate to them when the substantive matter will be heard.(KW)