#BTColumn – Repeal the General Orders!

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Rahym Augustin-Joseph

There can be nothing democratic about supporting the recent decision to bring disciplinary proceedings against Mr. [Pedro] Shepherd and [Alwyn] Babb for infractions against General Order 3.18.1 of the Code of Conduct and Ethics of the Public Service Act, which basically debars officers and employees from actively participating in politics, and essentially limiting their fundamental rights
of expression and association.

While I disagree with the limitations, the rationale of the limitations on civil servants are plausible because it seeks to maintain the neutrality of the public service and ensure that public servants continue to carry out their task with the highest level of professionalism, objectivity and integrity, which can come into question if they wave partisan flags and banners.

For the framers, neutrality and impartiality must not only be done, but seen to be done, especially in the context of a region where major accusations of victimisation and nepotism against members of political parties by their counterparts exist.

The framers were fearful that sensitive and confidential public service information would find its way into partisan squabbles and threaten the viability of the state. It is understandable why higher-ranking public officials who are actively engaged in the coordination of ministries and other policy implementation processes should be limited in their participation in the partisan environment of the country.

Therefore, the apolitical branch of the state must have been the public service wherein the work of the people can run without unwarranted partisan influences which would shape the direction of the country in order to preserve public confidence in the conduct of public affairs.

However, the deepening of our democracies requires us to interrogate whether these orders are necessary for teachers, or altogether, and whether we should move away from such orders which reflect one of the undemocratic and exclusionary vestiges of Westminster which affect a disproportionate number of our people.

From a glance reading of the orders, one can adjudge that the gentlemen indeed contravened the general orders, but that, in no way takes away from the fact that the orders run counter to our liberal democratic principles and are therefore unconstitutional. It is not enough to determine that the general orders should be followed and that disciplinary proceedings should continue because the orders fit the formal requirements of law.

When one reads the General Orders, 3.18.1 & 3.18.2 which note respectively that officers and employees are debarred from actively participating in politics through the standing for a seat, canvassing, acting as agents, holding office and speaking at political meetings, one has to agree that these transgress the Constitutional rights of public officers to communicate freely, especially in matters of a political and administrative character and also exercise a broad range of civil, political rights and freedoms.

The very same General Orders however, allow casual employees the ability to speak at political meetings and stand for elections, and should not be done, while on duty at the government premises.

The issues with these orders are that they are way too broad and lack the specificity needed for proper compliance. Moreover, there is nothing in the interpretation of the orders, wherein the important terms are defined, that defines what a casual employee is as opposed to an officer or employee. We are therefore unable to glean what classification of workers should follow the orders and what is the relevant justification for the relevant classifications.

Are we to assume that a teacher falls within the former or latter? If they were within the latter, we can reason that they would not be disciplined today as they would havefallen within the protective zone of the clause. It is not unintelligible therefore, to reason that a teacher falls within employees and officers.

However, if these limitations should continue, they should only be applicable to the upper ranks and senior officers of the Public Service as one cannot treat all employees within the public service with the same brush, cognisant that their job requirements are completely different. It means that their access to information which can be damaging to the viability of the state is limited by their position.

To deny them access would be to essentially be debarring hundreds of public servants the ability to actively participate in politics. The General Orders cannot continue to proffer a ‘what is good for the goose is good for the gander’ philosophy when dealing with junior and senior civil servants in relation to restricting their freedoms of expression.

The restrictions therefore need to be more tailored to the relevant category of workers within the PS and be clothed with legal certainty, because if one is not able to regulate their conduct with specificity and precision, they would not be aware of what their limitations and rights are.

The case of De Freitas has shown us that these can therefore be struck out as null and void because of how blanket and disproportionate the limitations are as they would not be rendered reasonable within a democratic state.

The words of Professor Ventose, current Faculty of Law Dean at UWI Cave Hill Campus are instructive when he noted that the code must restrict only the participation of certain categories of public officials which are distinguished by the sensitivity of their duties in connection with their political activity and the code must be focused and allow for exemptions for a particular category of employee.

De Freitas has therefore provided us with a proper framework to devise a comparable system of classification whereby there are classes of civil servants [politically free, intermediate, and politically restricted – who can still seek permission] related to the seniority of the posts which they fill and a distinction is made between the classes as to the extent of any restrictions imposed upon them in regard to their freedom of political expression.

Further, that should these individuals who put themselves for elections, and do not gain the support of the majority, according to their class, would be allowed to be reinstated once they meet certain criteria.

We must create an enabling environment with the security of tenure, wherein public officials are able to actively participate in partisan politics, recognizing that, they already exhibit political consciousness in spite of the general orders.

Essentially, the orders are asking us to interrogate whether for example that a teacher should be debarred from attending and speaking at a political meeting which seeks to protest against the government’s intention to take land allocated to build housing developments for impoverished children, or, whether public officials should not be able to protest against austerity measures which will affect the state?

The provisions which also speak to the inability to write in the newspapers about ‘political matters’ and only general subject matter must also be struck down as they do not provide any level of specificity to and seeks to continue to debar the levels of political conversations needed in our respective societies. It is important to ask what cannot be considered as political if we are to understand what the definition of politics is?

Judicial decisions such as de Freitas, Fraser, Osborne, Ahmed and Natta- Nelson from across the Commonwealth are instructive as they note that the test which should be applied in this case is not whether the active participation in politics would somehow remove impartiality and professionalism, but whether their involvement impedes on their ability to provide proper performance of their functions as a public officer.

Moreover, the Privy Council has held the position that while civil servants hold a unique status in a democratic system, it does not mean that their rights must be unduly invaded and that there needs to be a proper balance between the freedom of expression and the duty of a civil servant to fulfil his or her functions. Any blanket restriction therefore in limiting freedom of expression would be deemed excessive and not qualify as reasonably required.

While it is clear, that the General Orders are breached, we must look beyond the letter of the law and assess the wider democratic norms which underpin our liberal democracy. We must strike out these orders because they touch the heart and soul of our democracy. You can serve two masters publicly, once you understand that country comes before party! Can our public servants do that? Repeal the General Orders!

Rahym Augustin-Joseph is a second year student of the UWI Cave Hill Campus from Saint Lucia reading for a double major in Political Science and Law and member of the Cave Hill Guild of Students Council. While Rahym is a member of the Guild of Students Council 2021-2022, these views are not affiliated to this organisation and are his own. Rahym Augustin-Joseph can be reached via rahymrjoseph9@gmail.com.