Ignorance of law blocked St James councillors from affirmation over swearing in
Legislation makes provision to utilise alternative option, says Dr Lloyd Barnett
IGNORANCE OF the law appears to have been the culprit in the failure to seat two of the 17 candidates, who were successful in the February 26 local government election, and should have been sworn in at this past Thursday’s first sitting of the new administration at the St James Municipal Corporation.
Unlike their other 15 colleagues in the 17-seat municipal body, who were sworn in, in accordance with the provisions outlined in Section 29 of the Local Government Act, Anthony Murray and Gregory Harris, who won the Rose Hall and Salt Spring divisions, respectively, refused to take the oath on religious grounds.
The councillors were about to be sworn in via the affirmation route, but experienced councillor, JLP Senator Charles Sinclair enquired about the legality of doing so, based on the provision outlined in Section 29 of the Local Government Act, which stipulate how the process should be done.
“I had stepped out of the chamber and on my way back in, I heard an affirmation being given by a councillor, and being aware of the three strategic laws regarding local government procedure, which were given to us via a document that very morning, I realised that what was being done was not consistent with the strategic laws,” said Sinclair.
“And I asked, on a point of order, whether it was consistent and acceptable. I did not object, I raised a point of order to find out whether what was being said was consistent with what was set out in the law, Section 29 of the law … the Local Government Act of 2016, which sets out in it, the words that should be said when a councillor is taking the oath of office,” said Sinclair, who is an attorney-at-law.
ADAMANT ON OATH
Sinclair further noted that, with no one coming up with any documentation to address his query, a decision was taken that Naudia Crosskill, the StJMC’s chief executive officer (CEO), would seek clarity and guidance from the Ministry of Local Government and Community Development as to how they should proceed. Consequently, Murray and Harris, who remained adamant that they would not be taking the oath, were not sworn in.
However, in analysing what unfolded with the two councillors, respected constitutional lawyer, Dr Lloyd Barnett, made it clear that the law is not to be blamed for the non-seating of Murray and Harris, as there are clear provisions in the Constitution for the use of affirmation option, where persons are against taking oaths, as was the case with the two councillors.
According to Barnett, while Section 29 of the Local Government Act calls for councillors to take an oath, and Section 30 of the Act states that “duly elected persons who refuse or neglect to take and subscribe to the prescribed oath of office will be immediately disqualified and will cease to hold office”, other sections of the law provide cover for Murray and Harris to exercise the affirmation option.
“The Local Government Act required them to take an oath but that is subjected to other statutory provisions, which modifies that. Just reading it (the Local Government Act) without referring to other laws would lead you to believe that there is no option but to take an oath,” explained Barnett, who explained that the practice is not unique to Jamaica.
“I am telling you that, because of different laws, which have been put in place over time … not only Jamaica, but universally, people are not forced to take oaths. We have made provisions, which really provides, in general terms, for the taking of an oath to be substituted by an affirmation, if the person has religious objections to taking an oath.” added Barnett.
The two councillors, especially Harris, who is a first-time councillor, were looking forward to hitting the ground running, in a bid to start rewarding their constituents for giving them the opportunity to represent their respective divisions, were left very disappointed by being left on the side-lines by the lack of clarity over the swearing-in options.
“It is an unfortunate situation,” said Murray.
“We are in a society where religious liberty is paramount, and the fact that I am one of those persons who don’t believe in swearing, and I will not be swearing, there should always be an option for persons, like me, who don’t believe in swearing, to be affirmed,” said Murray, who is a Seventh-day Adventist.
“Last Thursday at our installation, we were given that option, and this morning we were not given that option to be affirmed … I believe this act (Local Government Act) should be revisited immediately so that people’s religious beliefs are not infringed on,” added Murray.
While making it clear that his enquiry was not meant to prevent the seating of Murray and Harris, Sinclair noted that in the absence of supporting documents, precedence, and the unambiguous way the provision of the Local Government Act is set out, he basically wanted to ensure that what was being done could stand up to legal scrutiny.
“I can’t recall anyone ever being sworn in by affirmation ... I know that I swear all the time. I comply with what is in the Act,” stated Sinclair, who noted that while councillors traditionally swear on the Bible, there is no provision in the Act that it should be so. The Acts just say the precise words that should be said,” said Sinclair. “A Bible was there, persons held up the Bible and said the words.”
In speaking to the bid to use affirmation, Sinclair said what he found strange was the fact that, “when they said they were going to affirm, and said what they said, they ended it by saying, ‘so help me God’. So, I am saying, how you are affirming and saying, ‘so help me God’?” said Sinclair, noting that sounded to him like the taking of an oath.
VERY DISAPPOINTED
In law, an affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath. An affirmation has exactly the same legal effect as an oath but is usually taken to avoid the religious implications of an oath and is therefore legally binding but not considered a religious oath
Harris, who did not state his religious affiliation, said he was very disappointed that he was not given the affirmation option, as he too is bonded by his belief in not swearing.
“It is my personal and religious belief that I don’t not swear and therefore believe the government needs to make an amendment to this Act because I am duly elected so therefore, it should not be a case that I am not getting the opportunity to serve the people because I am being forced to go against my religious,” said Harris.
Jenni Campbell, president of the Christian advocacy group, the Association of Christian Communicators and Media (ACCM), said she was quite concerned about the non-seating of Murray and Harris and the possible implications, especially since the Constitution makes provision for persons who do not wish to take an oath.
“Every Jamaican has a right to their faith and the Constitution allows for the freedom of religion. Every Jamaican, regardless of office status, is afforded this right. It is unfortunate that the elected councillors were not allowed to be seated,” said Campbell. “We have to be careful that we are not seeing the beginning of efforts to impose unconstitutional sanctions on anyone based on their faith.”