Does court ruling clear teachers in SVG to contest elections?

The recent Court of Appeal ruling that the election leave provision of the collective agreement the government signed with the Teachers’ Union in 2005 is valid has led some persons to believe that teachers are now cleared to contest general elections.

Among them is Kenroy Johnson, one of three former teachers on whose behalf the St. Vincent and the Grenadines Teachers’ Union sued the Unity Labour Party (ULP) government over non-compliance with the 2005 collective agreement.

Johnson, along with his colleagues Addison “Bash” Thomas and Elvis Daniel, contested the 2015 general elections on behalf of the main opposition New Democratic Party, having resigned their posts as nomination day approached.

The teachers said they were forced to resign after learning that they could not rely on Article 16, the election leave provision agreed between the government and their union.

The provision was that a teacher of more than three years’ standing could apply for six months no-pay election leave to contest national or local elections and be returned to their posts, all benefits intact, if they are unsuccessful.

Speaking at a teachers’ union press conference recently, Johnson welcomed the decision of the Appeal Court.

He told the media:

“I want to believe that this ruling of the court opens the doors to persons, teachers, who may have been in some doubt, who may have that dream to contest but fear that they’d fall into the same boat that we fell into.

“I think this ruling should give them a measure of confidence that they can take the chance. It would be interesting to see if anything like that happens in the upcoming elections, because, as far as I am concerned, that section is still there.”

President of the Teachers’ Union, Wendy Bynoe, who took up the post a year ago, told the media the collective bargaining agreement “should be” in place until a new one is agreed.

Shirlan “Zita” Barnwell, one of the lawyers who represented the union in the case against the government, told the media at the same press briefing that she had inquired about the lifespan of the agreement.

The lawyer said that she had been told that it has no end date and if no changes are made to the agreement, it simply rolls over.

Barnwell, however, noted the ruling of the Appeal Court regarding the election leave provision.

“What the court says, the article gives just leave. Ok? It doesn’t help you to be qualified to be a candidate. All it does is that it gives you leave. You have more than three years working in the service as a teacher, you apply for leave, if you are unsuccessful, it says you are to be reinstated to your job, whether it is the same post or one of equivalent status.”

She was referring to the government’s argument that the election leave provision of the collective bargaining agreement was “aspirational” as it contravenes Section 26 (1) (d) of the Constitution, which bars public officers from becoming election candidates.

Barnwell said:

“The issue that the respondents had raised is simply this. When you go to nomination day, you have to sign this declaration that says ‘I am not a public officer.’ On that form, you have to declare, if you are going to speak truthfully, you are a public officer. I think that is the crux that actually hooked Justice Cottle. At that hearing when counsel at the time, Richard Williams, pulled out this form as evidence and showed it to the court and said, ‘Listen, they would have had to sign this form and tick this box off saying I am not a public officer.’”

High Court judge Justice Brian Cottle had dismissed the union’s case as hopeless, a decision that the appeal court overturned.

Another question would be what happens if a teacher who secures election leave is actually elected in the polls.

“The High Court is the court that has the jurisdiction to decide whether or not you are qualified to sit there (in Parliament), and somebody has to raise that objection. So, here is leave; it doesn’t say whether you can sit in the House. What happens after that is not the concern of article 16,” Barnwell said.

The lawyer further told the media:

“So when you ask the question whether anybody else can run, using Article 16. Yes, they can use Article 16. It would be good to test and see what the state is going to do. Is the state going to point again back to Section 26 (1) (d) [of the Constitution] and say, look there, make up your mind what you want to do. You need to respond or is the state going to say, maybe for the next election, what we need to do, in proper good faith this time, is create the legislation that overrides that.”

Bynoe noted that Article 16 becomes a contentious issue as her union and the government negotiates a new collective agreement.

“In fact, we have written to the Ministry of Education for a meeting and on the agenda is collective bargaining.”

She said her union wants to keep the provision, but the government wants it to go.

The developments surrounding the contentious article, including the recent court ruling was raised by Opposition Leader Godwin Friday in last week’s Budget Debate.

Friday, who is also president of the NDP, said that Prime Minister Ralph Gonsalves had changed his mind about what he had described as a  “progressive” agreement.

He said Gonsalves’ change of heart had come because the NDP teachers are “political adversaries who had dared to challenge the government and so they mustn’t eat bread, they mustn’t go back to work.

“This is not a small consequence you know. People lose their pensions,” Friday said, adding that the higher court further said that the teachers had a legitimate expectation that they would be able to rely on the promise of the government that was in Article 16 of the agreement and return to their job.

“Mr. Speaker, this matter should never have come to this… You don’t need an agreement to hire back the teachers if you have a policy to do so, and what is worse you said let’s not rely on the discretion of the government of the time, you say let’s do it in writing and then you don’t want to honour that and you going take it to court. Mr. Speaker, I think it is something that lawyers might appreciate better than the general public but maybe I am just saying too much.”

Friday noted that the opening paragraph of the Court of Appeal judgment said the case involved the rather remarkable scenario of the government invoking the petition to defend itself against citizens.

“In other words, only in St. Vincent,” Friday said. “Here you have the state protecting itself from the individual; the awesome power of the state invoking the Constitution against the individuals.”

He noted that the court had said that when the government makes a legal promise, and someone relies on it, especially to their detriment, the government has to uphold that promise.

 “The whole thing just smacks of such bitter vindictiveness when you think of it in that context. Who would do such a thing? It’s indecent; it’s not Vincentian. We must not go down that path, Mr. Speaker. We have differences, whether in religion, in politics or just across the fence from our neighbour but we shouldn’t go to the point where we say I will destroy that person so that he cannot eat,” the opposition leader said.

He said the court shows how the matter can be resolved when it said the government should remove it from any doubt and should bring the relevant legislation to Parliament.

“So here I say, bring the legislation and we will settle it. Bring the bill to Parliament. It’s the right thing to do. Take it outside of just the collective agreement, give it legislative weight and show that — put your money where your mouth is, so to speak,” the opposition leader said.

“No one else should go through what Bash and Elvis Daniel and Kenroy Johnson went through. And they will tell their own story because it wasn’t easy and all because of spite. I mean these are experienced, valuable teachers to the profession. Elvis Daniel is a math teacher of distinction, very valuable to the profession. And you can’t find a place for him? It’s disgusting,” Friday told lawmakers.