Thursday, April 18, 2024

Don’t elect lawbreakers


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THE?People of this country must be constantly on guard to ensure that this society is not divided in two: one part which must obey our laws, and another section that ignores the law because of the position they hold. In other words, we must not develop this society where there is one law for the Medes and another for the Persians, to use a cliché.
The 1966 Independence Constitution at Section 44 restricted the holders of three public offices, namely judge, Director of Public Prosecutions and Auditor General, from being elected to the House of Assembly.
Section 44 (1) (b) provides that no person shall be qualified to be elected as a member of the House of Assembly who holds or is acting in either of those three offices. Nonetheless, over the years, there have been many examples of public officers and teachers resigning their posts to contest elections for seats in the House, even though there was no requirement to do so.
Those resignations were done in order to satisfy the requirements of the General Orders for the Public Service, particularly paragraph 3.18.1 which states:
Officers and employees are expressly forbidden to participate actively in politics, including the following –
(a) being adopted as a parliamentary candidate;
(b) canvassing on behalf of any party or candidate for election to the House of Assembly;
(c) acting as agents or sub-agents for any candidate for election;
(d) holding office in party political organizations; and
(e) speaking at political meetings.
The General Orders are administrative rules that were made in 1970 by our first Prime Minister Errol Barrow, in his capacity as minister with responsibility for establishments. However, these rules were not passed in Parliament with the necessary two-thirds majority vote to override a constitutional provision. It therefore means that this particular General Order did not have the force of law to restrict any public officer from seeking to be elected to Parliament.
I can only assume that Government eventually recognized the error and moved to correct it with an amendment to the Constitution in 1974, by inserting Section 44 (2) which states:
Without prejudice to the provisions of subsection (1)(b), Parliament may provide that, subject to such exceptions and limitations as Parliament may prescribe, a person shall not be qualified to be elected as a member of the House of Assembly if
(a) he holds or is acting in any office or appointment prescribed by Parliament either individually or by reference to a class of office or appointment;
(b) he belongs to any armed force of Barbados or to any class of person that is comprised in any such force; or
(c) he belongs to any police force of Barbados or to any class of person that is comprised in any such force.
With effect from January 1, 1975, the Constitution permitted Parliament to pass an ordinary law to restrict other public workers from being elected to the House of Assembly.
Parliament did not take steps to implement the intentions of Section 44 (2) until December 2007, with the passage of the Public Service Act. Even then the act did not explicitly prohibit political involvement by public workers. It made use of a roundabout method to achieve this goal by providing at Section 33 that the previously unenforceable General Orders were deemed to be made under the act. Thereafter, paragraph 9(2) of the Code Of Conduct And Ethics states:
Officers shall comply with restrictions on their political activities in accordance with this act or Regulations.
I have heard it argued that a person only becomes a candidate on Nomination Day and would only be required to resign from the Public Service on that day.
That is at best only a feeble misinterpretation of the law. The General Orders do not speak to Nomination Day: they speak to being adopted as a candidate. It is therefore my view that as soon as a party endorses/adopts a public worker as a candidate, he would be in breach of General Order 3.18.1.
Failing that, we would be confronted with a ridiculous situation where a public worker, who is a candidate, could not canvass or otherwise actively participate in his own campaign until Nomination Day, which could be as little as two weeks before the polls.
The present administration, when in Opposition, did not participate in the debate on the Public Service Bill. It is therefore entirely possible that they might not agree with some parts of the act, but the way to fix the perceived problem is not to ignore the law.
The Government has now been in power for five years and had ample time to repeal and replace any of the provisions that it found offensive. The surest way to lead to anarchy would be to have a government that chooses which laws to obey.
This matter should be particularly troubling for the Prime Minister. He finds himself in an unenviable position of wearing three hats at the same time. He is also president of the Democratic Labour Party and minister responsible for the Public Service, and should not be seen looking the other way while his candidates flout the rules. Enough said.
• Caswell Franklyn is a trade unionist and social commentator. Email

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