Caswell Franklyn Speaks – Teachers Charged for Obeying the Law
Consequent upon the suspension and charging of two teachers for contesting the January 19, 2022 elections, there has been much comment about the matter, most of which was misinformed. I would therefore like to share the results of my research, in the hope that it would bring about some level of understanding in the public domain.
Those two teachers have been charged as having committed misconduct of a serious nature between January 3 and 19, 2022, when as public officers participated in the 2022 General Elections as Democratic Labour Party parliamentary candidates contrary to General Orders 3.18.1 and in contravention of paragraph 2 (h) of the Code of Discipline.
Even though made in 1970 the General Orders for the Public Service had no legislative basis until 2007 when subsections 33.(1), (2) & (3) of the Public Service Act corrected that long outstanding oversight. They state:
33. (1) The Minister may make administrative orders to give effect to any provisions of the Codes or any other provisions of this Act.
(2) Subject to subsection (3), the General Orders are from the 31st December, 2007 deemed to have been made under subsection (1) and shall remain in force until revoked by an instrument in writing by the Minister under this Act.
(3) Where any provision of the the General Orders is inconsistent or in conflict with a Code or any regulation made under this Act, the Code or regulation shall prevail and the General Order shall to the extent of the inconsistency, be invalid.
The General Orders are merely administrative rules made by the Minister with responsibility for the Public Service and because they have finally been incorporated into Public Service Act, public officers can now be legally charged for breaching those orders. Bear in mind that the General Orders are subsidiary legislation and must therefore conform to the parent legislation and that neither the subsidiary nor the parent legislation can conflict with the Constitution.
Prior to November 30, 1966 there was an absolute prohibition against all public officers and employees contesting elections for the House of Assembly. That changed at Independence when the Constitution (the supreme law of the land) removed that restriction on all but three categories of public servant. The 1966 Constitution at section 44 provided that no person shall be qualified to be elected as a member of the House of Assembly who holds or is acting in the office of a Judge, the Director of Public Prosecution or the Auditor-General. It is remarkable that even with the lifting of those restrictions by the Constitution, public officers and public service managers continue to be misguided by the former rules to this day.
In 1974 Government, mindful of section 44 of the Constitution, saw the need to restrict other public workers from contesting parliamentary elections and made an amendment to the Constitution to achieve such. That amendment was inserted as section 44. (2) which states, 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 and or appointment prescribed by Parliament either individually or by reference to a class of office or appointment.
The original section 44 of the Constitution has been re-numbered section 44. (1).
Effective January 1, 1975, the date of the commencement of the 1974 Constitution (Amendment) Act, Parliament took the power onto itself to set out, by ordinary legislation, which other public servants could not participate in parliamentary elections. To date Parliament has not passed any such law. So as far as the Constitution of Barbados is concerned, there are only three holders of public office that cannot contest parliamentary elections, namely: Judge, Director of Public Prosecutions and Auditor-General.
The General Orders were first made in 1970 by the Rt. Excellent Errol Barrow and revised in 1997 by Prime Minister Owen Arthur. I think that we all can agree that neither Errol Barrow nor Owen Arthur was Parliament and therefore could not make any rules to override a provision of the Constitution. It is therefore my view that the teachers, who contested the elections, did nothing more than exercise their constitutional rights.
See Relevant Link inserted by Blogmaster: General Orders (Public Service)