Legal Analysis: Candidates Disclosing Contracts

The Centre for Justice provided the Parliamentary Select Committee on Elections with a legal analysis on the obligations of candidates in Parliamentary Elections to make disclosures of contracts that they may have with the Government of Bermuda.

The law relating to candidates’ disclosure is contained in section 30[6] of the Bermuda Constitution Order, as supplemented by the Legislature [Qualification and Disqualification] Act 1968.

The Centre for Justice said that as a non-partisan organization, they agreed to provide this legal analysis because the request was made by a bi-partisan committee, it involved a question of general public importance, and it is part of their remit to raise public awareness on constitutional issues and the rule of law in general.

After seeking independent legal advice from James Goudie QC, a preeminent expert on public law, Centre for Justice said they came to the conclusion that:

• [1] The Constitution makes it very clear that there must be a disclosure of an interest in any Government contract. This is subject to the exemptions and limitations contained in the Act, which should be interpreted narrowly so as to detract to the minimum extent possibly from the dominant requirement. Justification for any lack of transparency must be clearly demonstrated.

• [2] The legal obligation for a candidate to declare an interest in a Government contract is that he or she must do so under the Constitution unless they come clearly within one of the exceptions in Section 10 of the 1968 Act.

• [3] When disclosure is required it is mandatory. The sanction of disqualification for nondisclosure is automatic. The obligation does not apply only if the situation comes four square within one or more of the exemptions or limitations within the 1968 Act.

• [4] There is no distinction between political “insiders” and “outsiders” as no such distinction is made by the Constitution or the 1968 Act. The law does not refine what a Member’s interests are, just the circumstances in which an interest must be disclosed. To that end, there is no obscurity in these legal obligations, and no qualification to the duty of disclosure is made by reference to the concept of “outsiders”.

Centre for Justice said they would make the following recommendations:

• [1] The 1968 Act should be amended to remove any ambiguity.

• [2] The amendments should include enforcement provisions, in particular, by whom and how the requirements are to be policed and enforced.The Centre said, “At present the only way to sanction a Parliamentary candidate for breach of an obligation such as the requirement for disclosure is to file an election petition with the Supreme Court under the Legislature [Appointment, Election and Membership Controversies] Act 1968. Such petitions must be filed within 28 days of the return of the writ of election.”Unfortunately, such proceedings are cumbersome and costly. They are also not pro-active as they can only be issued after a candidate is elected a Member of Parliament. In addition, this Act also requires the petition to be served on the Attorney General. This could raise questions of fairness where the Attorney General is a political appointment under the Constitution.”Enforcement of requirements pertaining to electoral candidates, including the obligation to disclose an interest in a government contract, could be by way of an independent, nonpartisan Electoral Commission. We would expect the Commission to be given a wide range of powers to receive complaints, inquire as appropriate and sanction offending parties.”Centre for Justice will be looking at the issue of electoral reform in general in the coming months, and hope to have its proposals published by the end of the year.”
• [3] The requirement that parliamentary candidates should disclose any interest in government contract should be prominently placed on the nomination papers candidates must submit to take part in an electoral campaign.

Managing Director, Venous Memari said, “Our analysis of the law was based solely on the question of what obligations of disclosure political candidates have under the Constitution and the Legislature [Qualification and Disqualification] Act 1968.

“We did not consider any specific cases, nor do we intend to take a position on whether any individual parliamentarian is in breach of the Act – that is not our role. For the sake of completeness, that question is to be determined in a court of law based on the evidence presented to it.”

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