Barbados: Court says ban on public officers in politics inconsistent with constitutional rights


A High Court judge has struck down a regulation that prohibited all public servants from actively participating in politics, ruling it unconstitutional.

Justice Westmin James said on Tuesday that General Order 3.18.1 is also “inconsistent” with the rights to freedom of expression and association which are enshrined in the Constitution of Barbados.

“The regulation is overly broad, disproportionate and cannot be reasonably justified in a free and democratic society,” he added.

In an immediate reaction, Attorney General Dale Marshall told Barbados TODAY that when he is able to properly study the decision, he will “advise Cabinet of the import of the decision and make recommendations on how we should amend the regulations”.

“We now have to consider as a matter of policy how the matter should be approached,” he said.Justice James made the declaration in a 13-page judgment as he ruled in favour of temporary household facilitator in the Ministry of People Empowerment and Elder Affairs Natalie Murray who had 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. 

He also ruled that any disciplinary proceedings brought against Murray be “permanently stayed”.

Through her lawyers, prominent attorney Gregory Nicholls and counsel Kashawn Wood, Murray had challenged the constitutionality of the provision in the General Orders that forbids public officers and employees from participating actively in politics, including speaking at political meetings.

She contended that it was a breach of her constitutional rights to freedom of expression and freedom of association under Sections 20 and 21 of the Constitution of Barbados, respectively.

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. She was told that her actions were in breach of the General Orders and the Public Service Act Code of Discipline.

Murray accepted that she appeared on the BLP’s political platform and admitted that she had been an active member of the party for over 20 years. 

However, she contended that her participation in political activity had never hindered her effectiveness as a social worker or community organiser.

In his ruling, Justice James said that the regulation was not reasonably required for the proper performance of public officers’ functions in the context of any of the permissible limitations prescribed by Sections 20 and 21 of the Constitution.

He further referred to the particular General Order as a “blanket restriction”.

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.

“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,” Justice James said.

“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.”

As a result, the judge said the charge brought against Murray was “an invalid charge”. 

“It amounts to 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,” he said.

Also included in Justice James’ ruling was that costs associated with Murray’s claim for constitutional relief be assessed, if not agreed.

Last year, two teachers – Alwyn Babb and Pedro Shepherd – faced disciplinary action after contesting the 2022 general elections on a Democratic Labour Party (DLP) ticket.

Pointing out that the State will now have to revisit the regulations, Nicholls told Barbados TODAY: “I would say there should be no unbridled celebration that in the absence of these regulations there would be a free-for-all.” 

“Government would have to tailor the appropriate regulations, as suggested by the court, and the legal authorities which we submitted to the court for review and consideration…you are going to have to look at these things. The main argument is that you can’t have blanket restrictions on public officers who participate in politics,” he asserted.

The Attorney General, against whose office the action was brought, said while has not yet had an opportunity to study Justice James’ reasoning, he is not surprised by his ruling.

“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 told Barbados TODAY.

“If anything, it is a signal to us that the time is ripe for the Constitution Reform Commission to conduct its analysis on the provisions of our Constitution and, among other things, to measure our laws in the light of judicial decisions. 

“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,” the Government’s chief legal adviser added.

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  1. This should be a major confidence booster for the St. MARYS North Representative who has a similar claim to answer in the court in April. Many of these laws are old and antiquated and has been allowed to stand simply because they have never been challenged.

    • As if the Constitution from Barbados and that from Antigua are the same. How dumb can we get. And this decision was not one of the highest appeals courts. Therefore, the last word has not been said.

  2. So, the laws in our islands have prevented sensible, decent, hard working people such as teachers from participating in politics or running for office without losing their livelihoods if not elected… Teachers should not bring their personal politics into the classroom, but they might be very good political candidates based on their understanding of social issues in families and the development of human resources. And people wonder why some of those in politics are persons of questionable charcter. Well, if you exclude the decent people, then who else do you expect to get?

  3. @Audley Phillip…. Have you read the story closely? It speaks about a regulation in the Barbados General Orders, the equivalent of our Civil Service Regulations. However, a fundamental difference about this case and the one for Shugy Simon is that the very Constitution of Antigua and Barbuda prohibits Civil Servants from sitting in Parliament. Now, let that sink in for a bit!

    • Nothing to sink in, the Court would have only one thing to give consideration to whether Mr. Simon was a public servant at the time of his election.

      The issue of his manner of resignation is not for consideration and the prescribe manner under the regulations is only to effect 1, continuity if you hold such office that would require someone there as not to cause severe disruption or detriment to the public and 2 for the purpose of benefits accrued over the years. If I hold a lower level position and I choose to resign, the time prescribe for notice would affect my benefits if I fail to comply. This does not say I cannot resign or quit without full notice holding certain jobs, however if i do quit without notice I will forfeit certain benefits accrued to me.

      So Kelvin resignation and notice does not determine his right to quit a job. Once he have submitted such notice to quit and his letter of intention to quit to the appropriate person then he is within his constitutional rights to fire de work..

      In the Barbados case their General Orders is broad and over reaching and infringe on a person’s constitutional right to assemble and associate.

      Kelvin matters thought different still bears some similarities and would require to Courts to determine the constitutionality of some of our regulations i.e Elloy DE fraitus Matter ( trust I have his name spelt correct apologies if I did not)

      So it is a powerful decision by the Judge that should have caribbean countries to take a hard look at outdated regulations and laws and constitutional reform.

      That is what we here should be advocating for not whether Kelvin can sit or samantha is right . Rather should all Antiguans be afforded the right to enter politics if they so chose without suffering the lost of their initial job or put in economic hardship. The constitutions requires reform as it prejudice and discriminate a class of people in section 39 and also speaks of a person right of assembly and associate??

      Let’s have that discussion, as a Nation not RED or blue Just Antiguans. Can we do that??

      • It is not about the time of being elected. It’s about the time of being ‘NOMINATED’. His nomination is in question.

        • @From The Sideline
          Go read the constitution. It says nothing about nominated. It speaks about elected.

          • I’m not a lawyer, but even the UPP KC Justen Simon has said that Shugy should not even have been on any political stage while still employed by the government. And his opinion was that Shugy was in violation of the law and the Constitution. But I leave it up to the Court to make the decision. One thing I do understand is that the Judge is not bound by any kind of punishment. He can decide to just reprimand him not to do it again. And if that is his rule then we may have to think about going to Parliament and giving the law more teeth. Like giving the Judge guidelines in sentencing.

    • @Wash an’ Basin
      Shugy was not a civil servant when elected. He had already tendered his resignation. So what is to prevent him from sitting in parliament? Now, let that sink in for bit.

  4. For years, these corrupted Babylonian systems have used this toll/rule to stifle the voice of the people from speaking out, and many other draconian rules to stifle freedom of speech and expression, even employers have used it, calling it ” conflict of interest”.Say what you want about the USA, at least I can speak.

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