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FOR IMMEDIATE RELEASE

Report of the Parliamentary Select Committee on Elections
In February 2014, Centre for Justice provided the Parliamentary Select Committee on Elections (the
Committee) 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 (the Constitution), as supplemented by the Legislature (Qualification and
Disqualification) Act 1968 (the 1968 Act).
As a non-partisan organization, we agreed to provide this legal analysis because:
(a) the request was made by a bi-partisan committee,
(b) it involved a question of general public importance, and
(c) it is part of our 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, we 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 non-
disclosure 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 Members
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.
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Centre for Justice would make the following recommendations in respect of the above issues:
(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.

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, non-
partisan 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 would have to be determined in a court of law based on the evidence
presented to it.


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A first for Bermuda, Centre for Justice was established in 2011 as an independent, non-governmental
organization with a mandate to promote and advocate for human rights, civil liberties and the rule of
law through independent research and analysis.
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