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.