Caswell Franklyn, Unity Workers Union

The Caswell Franklyn Column – Against the Law for Public Officers to be Involved in Politics

 Asokore Beckles, public officer and president of the youth arm of the Barbados Labour Party

Asokore Beckles, public officer and president of the youth arm of the Barbados Labour Party

The issue of public officers’ involvement in politics has once again reared its ugly head. The Daily Nation of June 20, 2016 reported that the General Treasurer of the National Union of Public Workers, a public officer, has declared that he is seeking his party’s nomination to run against the Prime Minister in the next General Elections. We already know that this person is the president of the youth arm of the Barbados Labour Party.

I was discussing the news item and was asked; why should it be a problem now when so many public officers have been openly involved in politics in the past. The short answer might surprise many; it only became an offence that was punishable on December 31, 2007.

The only public servants who were disqualified from membership of the House of Assembly, by the original 1966 Constitution, were persons who hold or are acting in the office of judge, the Director of Public Prosecutions or the Auditor-General, in accordance with section 44.

A situation eventually emerged where the supreme law of the land prohibited only persons who occupy three distinct offices from membership of the House of Assembly, but the General Orders for the Public Service (General Order 3.18.1 to be precise) contains a provision that expressly forbids all officers to participate actively in politics. It is trite law that the Constitution takes precedence over all other man-made laws, and more so over a set of administrative rules called the General Orders.

To rectify the untenable situation where even a permanent secretary or the Commissioner of Police qualified to be elected as a member of the House, Government introduced and passed an amendment to the Constitution, in 1974, by adding section 44. (2) to say, among other things:

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.

To my mind, that amendment requires Parliament to pass a law in order to restrict other public servants from sitting in the House. That law, in the form of the Public Service Act, was not passed and brought into force until December 31, 2007. However, rather than name specific office holders or class of office holders, as required by the Constitution, Parliament, by section 35. (2) of the Public Service Act provided that the General Orders are deemed to have been made in accordance with that act. It has in effect made a blanket provision that forbids all public servants from serving in the House, holding office in a political party, canvassing or even speaking at political meetings.

My opinion is that the restrictions, imposed by the General Orders, are excessive and do not comply with the constitutional amendment. I believe that the Antiguan case of Elloy de Freitas that was decided by the Privy Council supports my contention. At paragraph 20 of that decision, the law lords said:

“… It cannot be that all expressions critical of the conduct of a politician are to be forbidden. It is a fundamental principle of a democratic society that citizens should be entitled to express their views about politicians, and while there may be legitimate restraints upon that freedom in the case of some civil servants, that restraint cannot be made absolute and universal”.

Mind you, that particular section of the General Orders has not been declared unconstitutional or otherwise set aside; It must therefore be obeyed until such time. It is not good enough for both political parties to set the extremely bad example of obeying laws only if it is expedient for them to do so.

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42 Comments on “The Caswell Franklyn Column – Against the Law for Public Officers to be Involved in Politics”

  1. Jeff Cumberbatch June 26, 2016 at 7:33 AM #

    A timely piece,Caswell. Perhaps another example of the point made in the Barbados Advocate editorial about unenforced laws.Here is another one!

    The philosophers ask…”Does a tree falling in the forest make a noise if you are not there?” Similarly, we may ask, “Does a law exist if we refuse to enforce it?”

    At least the civil law system is more realistic with their notion of desuetude!.

    Like

  2. Observing June 26, 2016 at 8:17 AM #

    Been watching this shameless quest for political ascension since last April. (Team NUPW).

    Imagine Mr. Beckles bragging about being a seasoned” trade unionist, an experienced government officer, and president of a political arm of the BLP while claiming to be “independent” all at the same time.

    Mr. Jones is doing the same in St. John. I assume Mr. McDowall has a little more sense and legal knowledge.

    Only bout hey.

    @Caswell
    CAn you remember the circumstances with the DLP’s D. Holder (St. Joseph)?? Did he resign after candidate nomination or only after election nomination?

    Just observing

    Like

  3. David June 26, 2016 at 8:24 AM #

    @Observing

    It goes to the point you made on the IONICS SCAM blog, we do not hold our officials accountable. Our traditional media operates in a comfort zone. Do they even try to get familiar with the rules?

    >

    Like

  4. Artaxerxes June 26, 2016 at 8:37 AM #

    A very interesting article and I AGREE with majority of its contents. However, it seems to me that we refer to certain laws when it is politically expedient or politically advantageous for us to do so.

    The news of Asokore Beckles declaring he is “seeking his party’s nomination to run against the Prime Minister in the next General Elections” will obviously bring with it some level of criticism, especially from DLP supporters.

    I’m hoping if Franklyn could inform me if the Director of the Urban Development Commission (UDC), Derek Alleyne, is CONSIDERED a PUBLIC OFFICER (that’s if he chooses to answer my query). If Alleyne is indeed a “public officer,” I’m sure the DLP supporters remembered him CANVASSING for the DLP and SPEAKING on the party’s POLITICAL CAMPAIGN PLATFORMS during the 2013 general election campaign.

    If one were to view the following video, which was recorded and uploaded on “DLP Barbados TV,” on February 8, 2013, you will witness Alleyne, WEARING a James Paul campaign T shirt, OPENLY and PUBLICLY CANVASSING for the DLP, while BEGGING people to vote for the DEMS. And this OCCURRED at a TIME when Alleyne was the DIRECTOR of UDC.

    http://www.ustream.tv/recorded/29131837

    Should we not EXPRESS SIMILAR CONCERNS about and DISGUST at these types of activities or are such criticisms only CONFINED to those persons who are seeking to “politically represent” the BLP?

    Like

  5. Caswell Franklyn June 26, 2016 at 8:43 AM #

    Observing

    It does not matter if he resigned after the nomination for the general election, he would have already broken the law. The particular General Order prevents persons from canvassing.

    I pointed this out to the Public Service Commission by letter and they took no action back then. It would be interesting to see if they enforce the law when a BLP person is in breach and not when the DEMS flout the same provision.

    Like

  6. David June 26, 2016 at 8:45 AM #

    This is a big part of our problem in Barbados with these tit for tat perspectives. Can we cut to the bone for once and deal with the issue? Is it illegal for civil servants (public servants) to be involved in politics as in the case of Beckles. Let us assume we want to turn a new page from today!

    Like

  7. David June 26, 2016 at 8:52 AM #

    If memory serves he resigned after because it was RAISED on BU pages. On another note- why must governments appoint individuals rejected at the polls to big jobs?

    http://www.barbadostoday.bb/2013/06/04/the-spoils/

    #rhetorical

    Like

  8. Caswell Franklyn June 26, 2016 at 8:55 AM #

    Artaxerxes

    The Public Service Act and the General Orders do not apply to statutory boards. Employees of statutory boards are not public officers within the meaning of the Constitution or the Public Service Act.

    I agree that those employees should be barred from taking part in politics in much the same way as public officers but that prohibition would have to be made in the legislation that established the board or in rules made by the board to regulate its workers. This is another example of why politicians create statutory boards.

    By the way, what gave you the impression that I would not have answered you?

    Like

  9. Observing June 26, 2016 at 8:58 AM #

    @Caswell
    Thanks, I found it.
    For general knowledge….

    GENERAL ORDERS
    3.18.1 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 organisations; and
    (e) speaking at political meetings.

    In the past these things happened quietly and faded away. Now it’s open season apparently.

    @Jeff
    any legal weigh in on the General Orders’ restriction???

    Just observing

    Like

  10. Well Well & Consequences June 26, 2016 at 9:27 AM #

    Kinda explains how David Simmons jumped from politician to judge to Chief Justice…but still fuzzy in his case.

    Like

  11. Jeff Cumberbatch June 26, 2016 at 9:48 AM #

    @ Observing 8:58 am

    In fact the restriction requires some justification since there is a constitutional right in Barbados to join political parties-

    “Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say , his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests”.

    Surprised that it has not been challenged as yet…

    Like

  12. Jeff Cumberbatch June 26, 2016 at 9:53 AM #

    An absolute restriction also runs afoul of the fact that any restriction should be “reasonably required”.

    “limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest”.

    Like

  13. David June 26, 2016 at 10:08 AM #

    @Jeff

    Give us your opinion as if you were a judge. How would you rule?

    Like

  14. Caswell Franklyn June 26, 2016 at 10:13 AM #

    David

    I have been arguing for years that the particular General Order offends the Construction but I must be obeyed until a court declare it to be unconstitutional. Any other approach would lead to anarchy.

    >

    Like

  15. David June 26, 2016 at 10:21 AM #

    @Caswell

    What was the outcome of the case?

    http://thevoiceslu.com/2016/01/public-servant-wants-right-to-take-part-in-politics/

    Like

  16. Jeff Cumberbatch June 26, 2016 at 10:24 AM #

    @ David, is this a test? LOL!!!

    Cumberbatch would hold that the absolute nature of the restriction on political activity by civil servants disproportionately overreaches the intended aim to ensure an impartial public service and thus unconstitutionally infringes their freedom of expression and of association

    A restriction on campaigning while a public officer should have sufficed.

    Like

  17. Jeff Cumberbatch June 26, 2016 at 10:28 AM #

    David, a brief note-

    The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to speak out.

    Held: The demonstration did contravene the restriction on publishing his views. Analogies with private employment were not useful. They were both servants of the State, and the Minister a politician necessarily and properly exposed to public opinion. The general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms. A blanket prohibition against all public discussion of all public issues by all public servants would deny fundamental democratic rights to far too many people.

    The interdiction, and the intended disciplinary proceedings contravened the appellant’s constitutional rights. In determining whether a limitation (by an act, rule or decision) is proportionate arbitrary or excessive the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

    Like

  18. Artaxerxes June 26, 2016 at 10:37 AM #

    @ David

    If you are referring to my comments, it’s rather UNFORTUNATE when you describe someone’s attempt to present an ALTERNATIVE perspective on an issue, as “tit for tat perspectives.”

    However, I’m not prepared to INDULGE in “one sided discussions” on any issue. How else are you PREPARED to “cut to the bone for once and deal with the issue” WITHOUT examining all angles of that issue?

    @ Caswell

    I recalled reading that George Griffith resigned as Assistant Director of the National Assistance Board (NAB) when he decided to enter politics as the BLP’s candidate for St. Philip North in the 1986 general elections.
    Additionally, Hamilton Lashley also resigned his post as NAB’s Store-room Keeper when he announced his intention to contest the 1994 general elections as the DLP’s candidate for St. Michael South East.

    Based on the above information and taking into consideration that NAB is a statutory board, I ASSUMED the rules applied to employees of “central government,” statutory corporations and quasi government organizations.

    Like

  19. David June 26, 2016 at 10:53 AM #

    @Artax

    Call it what you want, in the same way you posted a view BU did the same. Who cares what occurred with Dereck Alleyne and the lot. What we should pursue is to hold those contravening the law accountable, today! Isn’t it the same counter you use with the partisan ac argument?

    #mulberrybush

    Like

  20. Caswell Franklyn June 26, 2016 at 10:59 AM #

    Artaxerxes

    George Griffith, Hamilton Lashley, Ishmael Roett, Warrick Franklin, Undine Whittaker, Ronald Jones, Anthony Wiggins and others resigned from Public Service posts and statutory board employment because they were acting on a mistaken belief that the law required them to do so.

    The law restricting public officers only came into force on December 31, 2007. So far there is no statute restricting employees of statutory boards.

    Those persons who resigned prior to December 2007 to contest elections should have researched the law for themselves rather than relying on anecdotal evidence to reach their decisions.

    >

    Like

  21. de pedantic Dribbler June 26, 2016 at 11:00 AM #

    But Jeff, not to be pedantic but if the “…the restriction on political activity by civil servants disproportionately overreaches the intended aim to ensure an impartial public service” then why should there be “restriction on campaigning while a public officer”.

    Isn’t campaigning, ‘political activity’? If you campaign why should you be any better or worst as an objective arbiter as compared to if you were an overt active political participant?

    As you know almost every article on the US Supreme Court rulings and most Circuit Court of Appeal rulings will be appended with …Judge Cumberbatch was appointed by Pres Obama or Judge Cumberbatch was appointed by Pres Bush. Perception, perception perception.

    If these judges can be selected based on politics and make rulings ‘objectively’ then to me there is no fundamental reason why any other civil servant should be victimized for his/her political views.

    However, the reality is that often the ruling or decisions by the ‘civil servant’ are NOT seen as objective.

    So when a Hamilton Lashley acts he or George Griffith have to resign not because they necessarily will be overly political but because everyone coming to them for action WILL EXPECT them to be.

    Like

  22. Caswell Franklyn June 26, 2016 at 11:08 AM #

    Dribbler

    You must understand that the Supreme Court judges in the US are appointed for life. They are like headless nails, once in it is almost impossible to get them out. They are the pinnacle of their careers while most of the public employees, who involve themselves in local politics, are mostly low level operatives with the level of security of tenure that exists in respect of those judges.

    >

    Like

  23. Artaxerxes June 26, 2016 at 11:21 AM #

    @ David

    You want to discuss the legality or illegality of public servants being actively involved in politics and wrote: “Who cares what occurred with Dereck Alleyne and the lot?”

    Hmmmmmmm. It harrows me with fear and wonder.

    Like

  24. David June 26, 2016 at 11:26 AM #

    @Artax

    What difference does it make discussing Alleyne on a platform last election, waiting.

    Like

  25. Artaxerxes June 26, 2016 at 12:29 PM #

    @ David

    If you interpreted my mentioning the occurrence and juxtaposing it with Beckles situation as my suggesting there should be a discussion about “Alleyne on a platform last election,” then so be it.

    However, since Caswell gave a much more appropriate and informed response, I will allow your comments go over my head.

    Like

  26. de pedantic Dribbler June 26, 2016 at 12:41 PM #

    Fair enough Caswell, but a low level operative who denies your application for UDC home assistance still pales in comparison to a ruling on a Presidential immigration policy for example. The impact of one is colossal for a family. The other thousands of families.

    Lack of proper objective reasoning whether from life appointees with big-shot legal brains or a fellow holding on tight pon he little pick is wrong.

    Gotta find a way to fix it all around.

    Incidentally, not suggesting any Supreme Court ruling or local court rulings are based on pure political bias….perception as with the lil man wid he pick, is such however.

    Like

  27. David June 26, 2016 at 2:46 PM #

    This has been an excellent discussion so far devoid of the usual palaver.

    Like

  28. Violet C Beckles June 26, 2016 at 2:54 PM #

    The other side of shame when it comes to the men called Beckles in or of the DBLP government ,, Crooks, Liars and Scumbags , As a Nation start to wake up to see the crimes and the wrongs being done to it , the laws and its People,

    Like

  29. David June 26, 2016 at 9:59 PM #

    @Caswell

    A birdy told BU that Humphrey bead Beckles this evening by a lot in St. Michael South.

    Like

  30. Caswell Franklyn June 26, 2016 at 10:04 PM #

    Can’t say that I am sorry to hear. Beckles needs to take a dose of Epsom salts and wash this political sh*** out of his system.

    >

    Like

  31. Observing June 27, 2016 at 6:12 AM #

    @David
    Humphrey was always the chosen one.

    Just observing

    Like

  32. David June 27, 2016 at 6:23 AM #

    @Observing

    What are you suggesting, that Beckles was a pawn in the game?

    Like

  33. erice June 27, 2016 at 7:05 AM #

    Beckles could have rent a vote yesterday as they did 0n 9th June 2016.

    Like

  34. Caswell Franklyn June 27, 2016 at 7:11 AM #

    My information is that Beckles was told that his services would best be utilised in the interest of the BLP if he remained in the union and not to seek the nomination. He rebelled, insisting that he will not be used without realising that he was already used.

    Sent from my iPad

    >

    Like

  35. erice June 27, 2016 at 7:39 AM #

    this whole executive has been used by Mia

    who pays the piper calls the tune

    Like

  36. Observing June 27, 2016 at 7:39 AM #

    @David

    Not a pawn. Just purposely blinded by ambition and foolish.

    Caswell hit the nail on the head about being “used” on “Team NUPW.”

    Take a dig into the origins of Humphrey. Makes for interesting reading.🙂

    Just observing

    Like

  37. David June 27, 2016 at 8:41 AM #

    Is this the same Humphrey who was responsible for the constituency councils?

    Like

  38. Observing June 27, 2016 at 3:43 PM #

    @David
    Indeed he is!!!!

    The plot thickens!!!!!!!!

    Just observing

    Like

  39. Hants June 27, 2016 at 4:00 PM #

    CHAMPION and CHAMPIONESS.

    Like

  40. Hants June 27, 2016 at 4:01 PM #

    Politics is bare fete an sport.

    Like

  41. balance June 27, 2016 at 7:06 PM #

    “David June 26, 2016 at 10:08 AM #

    @Jeff

    Give us your opinion as if you were a judge. How would you rule?”
    He has already ruled.
    One- Nothing trumps the constitution And
    tw0- absolute restriction also runs afoul of the fact that any restriction should be “reasonably required”.

    Like

  42. balance June 27, 2016 at 7:11 PM #

    “are mostly low level operatives with the level of security of tenure that exists in respect of those judges.”

    with or without

    Like

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