A High Court judge has ruled that the prohibition of public officers engaging in active politics is unconstitutional and inconsistent with the rights to freedom of expression and association outlined in the Constitution of Barbados.
Justice Westmin James delivered that judgment on Tuesday in the case of Natalie Murray, a public officer who sought constitutional relief after disciplinary action was contemplated against her after she spoke on a Barbados Labour Party (BLP) platform during the 2022 general election.
The regulation at the centre of the court action, 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 organizations; and speaking at political meetings.
“The regulation is overly broad, disproportionate and cannot be reasonably justified in a free and democratic society,” Justice James said.
“It is plain to the Court that General Order 3.18.1 is a sweeping, blanket ban, permitting of no exceptions. The restriction is absolute and universal to all public servants from lower level public servants . . . to the highest rank public servant. This sort of blanket restriction does not satisfy the qualification in the Constitution that the restriction be reasonably required for the proper performance of their function. It is therefore inconsistent with the general right guaranteed by freedom of expression and association,” he added.
“In the circumstances, I hold that General Order 3.18.1 has not satisfied the criterion of being reasonably required as it is disproportionate in not distinguishing between classes of civil servants as to the restraints imposed on freedom of expression and/or the types of political activity. It is therefore void for unconstitutionality.”
The High Court judge said, therefore, that the action brought against Murray, a temporary household facilitator in the Ministry of People Empowerment and Elder Affairs, was “invalid” and said that any disciplinary proceedings brought against her be permanently stayed.
He said General Order 3.18.1 was “a hindrance to her right to freedom of expression and association guaranteed under Sections 20 and 21 of the Barbados Constitution and is an improper and invalid restriction upon her as a lower-level public officer”.
In a letter dated March 8, 2022, signed by the Permanent Secretary in the Ministry of People Empowerment and Elder Affairs, Murray was informed that a disciplinary report was submitted regarding her appearance as a speaker on the political platform of the BLP on January 6 and 16, 2022.
Although accepting that did happen and that she had been an active member of the ruling party for more than two decades, Murray contended that her participation in political activity had never hindered her effectiveness in her job.
Attorney General Dale Marshall told online newspaper Barbados TODAY that he was not surprised by the ruling and once he had studied it, he would “advise Cabinet of the import of the decision and make recommendations on how we should amend the regulations”.
“As the jurisprudence on Caribbean constitutions continues to develop, we will see many of the long-held thinking on rights and freedoms being modified or even being rejected outright. Such has been the case with the mandatory death penalty, buggery laws and now public service regulations,” he said.
“This is not the first case in the region where similar prohibition of public servants becoming involved in the political process has been ruled to be unconstitutional so I would not say that I am entirely surprised at the ruling.”
