Author: Rawl Wilson | Date: 14 August 2019
The right to vote enjoys extensive recognition and enforcement in modern constitutional democracies, but the same may not be said of the closely akin and equally important right to stand as a candidate for elections. The right to stand in elections is recognized by many regional and international human rights instruments, but codification and protection of such a right has not gained prominence in the domestic arena. For example, Article 25 of the International Covenant for Civil and Political Rights guarantees “Every citizen…….the right and the opportunity……To vote and to be elected at genuine periodic elections…..”
Conversely, at the domestic level, section (52)(1)(b) of Montserrat’s Constitution Order 2010 specifies that “…..No person shall be qualified to be elected as a member of the Legislative Assembly who— holds or is acting in any public office……..”, where Section (107) defines “public office” as “……. an office of emolument in the public service…..”
In layman’s terms, the constitution of Montserrat prohibits a citizen of Montserrat, who is a public servant, from running for elections unless he or she resigns from his or her public sector post.
With regard to “Protection from discrimination”, section 16(2) of the constitution states that “…… no person shall be treated in a discriminatory manner by any person acting by virtue of any written law…..”
Section (52)(1)(b) of Montserrat’s Constitution Order 2010, not only makes elections less competitive by prohibiting many qualified individuals to run for elected offices, but burdens voters by limiting the field of candidates from which they may choose. As a consequence, the electorate may be deprived of the opportunity of choosing the candidate best suited to be their elected representatives.
The approach is different in some other jurisdictions; in the United States, for instance, Indiana’s law does not force a public servant to resign if he or she wishes to run for elected office in the same constituent the candidate is employed, but it does require the candidate to resign if elected. In the state of Victoria, in Australia, if a public servant wishes to stand in federal election, he or she is prohibited from doing so, under section (44) of the Australian constitution. Interestingly, however, under schedule 1, item 3, of the Australian Public Administration Act 2004, a Victorian public servant who resigns to stand in federal elections enjoys the right to seek reinstatement to the public sector post he or she previously held, after an unsuccessful election bid.
An alternative approach to resigning before running for elected office, is granting the public servant unpaid leave of absence during the period from which the prospective candidate is qualified or nominated for candidacy to the announcement of the election’s outcome.
While these approaches may not find favour with our Legislators in Montserrat, they certainly offer a better and more flexible balance between the protection of an individual fundamental right and the collective interests of the public and the executive authority.
It may be argued that a public servant seeking to run for elected office may neglect, while campaigning, the duties of the position he or she currently holds, or that the public servant’s ability to perform his or her duties in a politically impartial or unbiased manner will be impaired or could be perceived as being impaired by his or her political activity. One may also argue that a public servant seeking to run for elected office may be in possession of sensitive information acquired through his or her official capacity and may use such information to his or her own advantage to outwit his or her opponents and garner political fortitude, or that the public servant may use government resources to showcase and further his or her candidacy.
Notwithstanding the arguable legitimacy of such concerns, the voter’s interest of having access to a diverse array of candidates from a broad and varied cross –section of the society, including public servants, must not be ignored, but rather be served through a fundamental right to candidacy, where the state must be required to justify, at a high level of scrutiny, any statutory disqualification to stand in elections. Statutory disqualification of the right to candidacy without a compelling justification, of the like found in section (52) (1) (b) of the Montserrat constitution, dismantles and erodes the very fabric of constitutional democracies.
In a constitutional democracy, the power of the government is limited by legal means so that the rights of the individuals and minorities are protected. One of the fundamental values of a constitutional democracy is JUSTICE, in that a constitutional democracy promotes political equality i.e. all citizens are equally entitled to participate in the political system. Is this contextually factual in Montserrat? Unfortunately not, because political equality is perceived to be guaranteed by our laws and our constitution, but is, in fact, implicitly disallowed by virtue of section (52)(1)(b) of the Montserrat constitution. This clause of the constitution is onerous and retrograde, and must be brought to the spotlight so that a national conversation surrounding this issue can be raised.
At least three political candidates running for elected offices in Montserrat’s 2019 constitutionally due general election have been affected by this provision in the constitution, in that, these individuals recently served or currently serve as public servants, at the time this article was written, and were confronted with the option of “resign to run” for elected office or non-renewal of employment contract. What if, at stakes for these individuals, were years of service within the public sector, mortgages and loans, and, not to mention, financial upkeep of themselves and families? Should this represent the situational circumstances of these individuals, consider the grave impecuniosities that these candidates could be overtaken by in the worst case scenario of an unexpected outcome of failed election bids.
Further afield, the US Supreme Court concurs that standing for election is necessarily a right which is entitled to protection. In the case, Lubin v Panish the US Supreme Court noted that “..... The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters.”
In conclusion, while Montserrat has many of the essential elements and principles of a constitutional democracy, it falls just short of promoting full political equality by limiting democracy through, inter alia, the imposition of statutory disqualification of public servants-officers whom, in some cases, are very knowledgeable about governance by virtue of their offices - to stand as candidates in elections. This restriction is unreasonable and insufficiently justified, and deprives citizens of a right that should, otherwise be equal and non-discriminatory. Further, this constitutional limitation curtails the very freedom the constitution seeks to provide and promotes the violation of the very right the constitution seeks to protect.
Note about the Writer
Rawl Wilson is a Guyanese national who currently resides in Montserrat. He is a teacher at Montserrat Secondary School. His wide-ranging and diverse interests are reflected in his training in Civil Engineering, Theology and Law.