Should Bartlett be horsing around?

Checks and balances

The history and purpose of what is now Section 41 of our Constitution was thoroughly traced by Chief Justice Hallinan, who went back to the origins of the British Westminster parliamentary systems as illustrated in May's Parliamentary Practice (16th Edition) at p. 215 as follows:

"Government contractors, who may be regarded as analogous to office-holders, being supposed to be liable to the influence of their employers - the executive government - and therefore open to one of the objections against office-holding, are disqualified by statute."

More regarding that 'statute' later. For now, it's enough if readers recall that, unlike Jamaica, England has no written Constitution. In England, the Monarch's Parliament is supreme and every act of Parliament (statute) has constitutional effect.

Chief Justice Hallinan relied on May to conclude:

"I think it is reasonable to assume that the mischief aimed at by Article 23 (2) (f) is substantially the same. The object is to ensure the independence of the legislature from interference by the executive; it is not the object to prevent members of the legislature from exercising improper influence on the executive - on the contrary - a major constitutional problem today is how the legislature can retain a proper measure of control over the increasing power of the executive. It follows from this conclusion that it is not an object of paragraph (f) to prevent the executive from being under an obligation to a member of the House; the object is to prevent a member from being under an obligation to the executive."

Civics students will immediately appreciate that these devices are inserted to ensure a strictly principled adherence to the separation of powers (in so far as this can be accomplished in a Westminster framework) and to erect and implement as many checks and balances on executive power as possible. Examples abound worldwide of the dangers wherever executive power remains unchecked for too long. In a Westminster system of government, the most effective check and balance on executive power is the public service (aka the 'civil service').

It's essential that, in a system of governance where lines between executive and legislature are already blurred, the independence of the civil service be cherished and strengthened wherever possible. It's for that reason, for example, that no member of the civil service is allowed to run for political office while still a member of that administrative arm of government.

It's against this background that we take a close look at the curious case of Dr St Aubyn Bartlett, according to a profile published on the Gordon House website: a graduate of the Tuskegee University School of Veterinary Medicine; holder of Bachelor of Science degrees from both the Tuskegee University School of Agriculture and the Jamaica School of Agriculture; and a Master of Arts degree from the Tuskegee University of Agriculture. And, of course, MP for for St Andrew Eastern since 2002.

Apparently, Dr Bartlett was employed as a veterinary assistant by the Ministry of Agriculture from 1976-1982 and as assistant professor of animal science, Tuskegee University (1989-1990). Thereafter, he's been employed as a veterinarian by the Jamaica Racing Commission (JRC) to today, during which time payment of his emoluments can be traced right back to the Consolidated Fund. His work has been, and his job description continues to include, work to be done on behalf of the Government of Jamaica (regardless of the exact words used). I'm sure I'll be told that, as an employee of a statutory body, he is not a civil servant. Maybe so (I don't agree), but that's not the issue.

JRC not exempt

If you look back to Section 41 of the Constitution, you'll see that the contracts referred to therein are "with the Government of Jamaica for or on account of the public service". Statutory bodies are part of the Government as much as are the ministries under whose portfolios they fall and to which they report. The 'public service' is defined in the Constitution, in part, as "the service of the Crown in a civil capacity in respect of the Government of Jamaica". In whose 'service' are JRC employees acting?

In England, whose system we so jealously copy, the issue is made clear by the statute to which May's Parliamentary Practice earlier referred. The most recent version of that statute is the UK House of Commons Disqualification Act 1975 (has constitutional effect in England) Section 1, of which provides:

"1 (1) ... a person is disqualified for membership of the House of Commons who for the time being -

... (b) is employed in the civil service of the Crown whether in an established capacity or not and whether for the whole or part of his time.

... (f) holds any office described in Part II or Part III of Schedule 1."

Included in Schedule 1 is a comprehensive list of statutory bodies, including, specifically, The Gaming Board for Great Britain, which is the closest British statutory example to the JRC (English racing isn't regulated by statutory authority). In Jamaica, members of statutory boards are expressly excluded from the definition of 'public officers' but they, and their staff, are in the service of the Government.

Whether or not Dr Bartlett (who isn't a member of the JRC board but an ordinary staffer) is a 'civil servant' properly so called, his work is unquestionably done for or on account of the public service and, accordingly, he ought to have sought parliamentary exemption upon being elected MP in 2002. Did he? I don't know, but the Office of the Contractor General has recently confirmed that there is no such parliamentary exemption in place for the period subsequent to the 2007 election.

Dr Bartlett couldn't have applied for the exemption before entering into the contract but, in my opinion, he was obliged to do so as soon after the 2007 election as practicable. If there's no such exemption in place, it's my opinion his seat ought to be declared vacant. In 2007, House members should've considered carefully whether or not to grant any exemption based on the principles in the Cargill case. Dr Bartlett's full-time salaried employment in the Government's service may compromise his duties as MP beyond redemption. Why should civil servants (properly so called) resign before running for Parliament but employees of statutory bodies not face the same ethical choice?

Tangled web

In the recent reshuffle, bad became worse as Dr Bartlett accepted appointment to the executive itself as junior minister in the national security ministry without resigning his JRC job. Now, he not only owes obligations to the executive, he IS the executive. How can this be right? Again, in my opinion, the proviso to Section 41 applies only to members of the House who aren't ministers. It cannot be within the ambit of that proviso, expressly established by the Cargill case to be protective of MPs against the executive, to be used to benefit a member of the executive itself. Surely, to permit an MP to be both an executive member and an employee of the executive would be an abuse of parliamentary power not contemplated by the framers of Section 41?

Recently, after his promotion to the executive, Dr Bartlett was seen working at the racetrack as the 'scratch-time' vet. When challenged on radio, he saw no conflict between his working as racetrack vet and being a government minister. He boasted that the JRC chairman had "no authority to determine whether I work at the racetrack". Is there a clearer example of why we must check executive power before it overruns us?

So, to whose 'authority' will Dr Bartlett submit? The prime minister is touted as a constitutional and parliamentary scholar. Will he step in on our behalf? Or do constitutional rights only begin at Tivoli? Maybe he's too worried about gathering enough votes to pass the unpopular supplementary budget to upset one of the few loyalists he has left?

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.