Overhaul of regulations governing public officers needed

A former judge believes the two teachers facing disciplinary action for contesting the January 19, 2022 general elections have a good chance of winning their case if it goes to court.

Ex High Court Justice in St Kitts and Nevis, Professor Eddy Ventose, who is currently Dean of the Faculty of Law at the University of the West Indies (UWI), Cave Hill campus also called for a comprehensive overhaul of all regulations governing public officers in Barbados.

He argued on Tuesday that the clause in the General Orders Act under which Pedro Shepherd and Alwyn Babb are being punished is unconstitutional.

“A blanket restriction which does not categorise a particular employee and does not allow certain categories to participate is unconstitutional,” he told Barbados TODAY.

Shepherd and Babb, who unsuccessfully contested the polls for the Democratic Labour Party (DLP) in St Michael South East and St Peter, respectively, have been sent on leave with half pay for contravening Paragraph 2 (h) of the Code of Discipline in the Public Service, Third Schedule, Public Service Act, Cap 29, and acting in breach of General Order 3.18.1 of the General Orders of the Public Service 1970.

General Order 3.18.1 states that officers and employees are expressly forbidden to participate actively in politics, including being adopted as a parliamentary candidate, canvassing on behalf of any party or candidate; acting as agents or sub-agents of any candidate for election; holding office in party political organisations; and speaking at political meetings.

But Professor Ventose contended that the clause was way too broad in its restrictions and therefore contravened the teachers’ constitutional right of freedom of expression and association.

He cited similar cases in which governments lost court battles, including a 2019 judgement that he handed down against the administration in his country, where Rules 36 and 38 of the Public Service (Conduct and Ethics of Officers’) Code required an accountant in the Customs Department who wanted to run against the prime minister to first resign.

Relating the teachers’ matter here to the judgement he made in 2019, the former judge drew on the part of his decision in which he quoted a Privy Council ruling that stated: “A blanket restraint on all civil servants from communicating, to anyone, any expression of view on any matter of political controversy would in the view of their Lordships, be excessive.”

“It would not satisfy the qualification in the Constitution that the restriction be reasonably required for the proper performance of their functions,” the Privy Council had added.

Ventose told Barbados TODAY that what the Privy Council made clear in cases from Australia and Canada, is that “if any such blanket restriction is made unconstitutional or that it is still no less important, given the role that public servants play in respect of the functioning of government, that public servants can be restricted from participating in politics”.

“However, any such code must restrict only the participation of certain categories of public officers which are distinguished by the sensitivity of their duties in connection with their political activity.The code must be focused and allow for exemptions for a particular category of employee,” he stated.

Professor Ventose explained that while senior public officers who are involved in the policy implementation process such as Permanent Secretaries, Commissioners of Police and Cabinet Secretaries can be restricted from participation in elective politics, persons such as teachers, clerical officers and casual workers have a right to do so.

He said the contentious clause lumps all public officers together, rendering it null and void in the context of the rights and freedoms enshrined in the Constitution regarding free speech and association.

The constitutional law expert, therefore, urged the Government to repeal the code in question.

“In my view, although it is clear that the particular officers do offend the General Orders, in view of the existing case law which suggests clearly that Public Order 3.18.1 is unconstitutional, disciplinary proceedings should not be brought against them. What should happen is that Government should seek to amend Section 3.18.1 instead of having it applied to all officers,” he argued.

Professor Ventose was also confident that the two teachers would have a sound case against the Government if they were to challenge their disciplinary action in court.

“Given the decision of de Freitas [by Privy Council] and the judgement I had handed down when I was a High Court judge in St Kitts, in Leon Natta-Nelson [vs the Attorney General], it seems clear given a number of legal authorities that such a blanket restriction is unconstitutional by infringing the rights of association and the rights of expression of public officers. I cannot see an argument that can be made for the blanket restriction, especially in light of the Privy Council ruling in de Freitas,” the former judge declared.

Professor Ventose also made reference to a number of other legal anomalies in Barbados, such as the recent High Court ruling that threw out a 40-year Prison (Amendment) Act that barred officers from joining trade unions.

“The time may very well be ripe to have a comprehensive re-examination of all rules, regulations, codes governing public servants to ensure that those elements of unconstitutionality or anomalous provisions no longer obtain,” he suggested. emmanueljoseph@barbadostoday.bb