Commission of Inquiry: Rule of Law, What a Joke!

Caswell Franklyn, Head of Unity Workers Union

By now Prime Minister Freundel Stuart should have re-read the relevant sections of the Constitution, the Public Service Act and the Commission of Inquiry Act and realised that he has seriously blundered in his handling of the industrial relations problems at the Alexandra School. He is sticking tenaciously to his explanation that he acted in accordance with the rule of law, but he did not go on to say which law.

I have done a diligent search and I have been unable to discover the particular rule of law that allowed the Prime Minister to intervene in a matter that involved allegations of misconduct by a public officer. Instead, I have found every reason why he should have steered clear of the now infamous Alexandra debacle. Judging from the state of the economy, he had better things to do than usurp the role that was already bestowed on others by the Constitution. It is enough to quote section 94 (1) of the Constitution to show who is responsible for disciplinary matters in the Public Service:

94 (1) Subject to the provisions of this Constitution, power to make appointments to public offices and to remove and exercise disciplinary control over persons holding or acting in such offices is hereby vested in the Governor-General, acting in accordance with the advice of the Public Service Commission.

Allegations of misconduct against public officers are supposed to be dealt with in accordance with the Code of Discipline in the Public Service, which can be found at the Third schedule of the Public Service Act. The code is quite detailed but in essence, if the Public Service Commission (PSC) is of the opinion that an officer has a case to answer in relation to an allegation of misconduct of a serious nature, it is empowered to bring a charge of misconduct against the officer and establish an investigatory committee to conduct an inquiry. The committee consists of three persons, one of which must be an attorney-at-law. It is empowered in much the same way as a commission of inquiry to summon witnesses and administer oaths. If they find that the charge is proven, they would set out to the PSC the reasons for arriving at its opinion and also recommend the penalty that may be imposed. The PSC may then make such decision as it considers appropriate and advise the Governor-General accordingly.

Paragraph 6 (1) of the Code of Discipline sets out the penalties that may be imposed if a charge of misconduct of a serious nature is proved:

(a) suspension on half pay for a period not in excess of 6 months;

(b) reduction in rank;

(c) suspension of future increments for a period not exceeding 2 years;

(d) reprimand in writing;

(e) compulsory retirement; or dismissal

So far there was no role for the Prime Minister.

Instead of allowing the established disciplinary procedure in the Public Service to work, the Prime Minister has chosen to set up a commission of inquiry which would investigate the Alexandra affair and make recommendations to the Governor-General. The question to be asked is: who would benefit from the establishment of such a commission of inquiry? The short answer is other than the lawyers representing interested parties, the only persons to benefit would be any person who is guilty of wrongdoing who is called to give evidence. That might seem strange but the easiest way to escape punishment for any offence is to go before the commission of inquiry and admit to any wrongful act that you would have committed.

Section 13 (2) of the Commission of Inquiry Act states:

No evidence given by a witness to an investigatory commission may be used against him in any subsequent trial or in any criminal or civil proceedings other than a prosecution for perjury in giving that evidence.

The procedure adopted by the Prime Minister for dealing with the Alexandra matter would ensure that any person who is guilty of an offence could escape any repercussions if he tells the truth before the Commission of Enquiry. On the other hand, if the PSC was allowed to do its job, anyone who would have been found to have committed an offence would have been subject to a range of penalties up to dismissal from the Public Service.

I understand the Prime Minister’s frustration over the protracted nature of the dispute. I also understand why he would use every opportunity to make himself look good, to the electorate, ahead of the election. However, I do not understand why he did not allow the PSC to do the job that it was constitutionally appointed to do, after all a new PSC was only appointed days before the announcement of this commission of inquiry. Do you still think that he was right to intervene?

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0 responses to “Commission of Inquiry: Rule of Law, What a Joke!

  1. Caswell Franklyn

    An Observer

    I have told you in the past and you well know that I prefer Freundel Stuart to all the other pretenders to that high office. Freundel is not perfect and I must be allowed to criticise him when I see fit. He has his faults even though you see none.

    Like

  2. Caswell Franklyn

    Observing

    The Public Service Commission cannot investigate the Minister. They had a duty to investigate everyone else but Mary since she was acting in her capacity as President of BSTU. That is not to say that any of the others are guilty only that there was sufficient before them to investigate. NOT THE PM!

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  3. An Observer..

    @ Caswell ..
    The records of these blogs will indicate that I HAVE NEVER ONCE MADE A PERSONAL ATTACK ON YOU …..I have resisted and will continue to resist responding to the PERSONAL attacks you continue to AIM AT SOMEONE YOU CONSIDER TO BE ME . If you are so sure who I am , the blogs is no proper medium to continue this personal attack ; you may easily do that IN PERSON thereby sparing the readers a continual exhibition of this unseemly behaviour . You may continue , like Don Quixote , to tilt at windmills ; I shall not be responding to you while you pursue an agenda that is only apparent to you . Peace as usual

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  4. Caswell Franklyn

    An Observer

    With you I was acting in self defence. Since you called a truce I am man enough to observe it. But make no mistake, it will be an armed truce as I will respond in kind at short notice.

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  5. @Caswell
    I tossed in Mary and the minister as a curve ball. well hit. My points about the impracticality of it all given the dizzying heights of industrial relations and procedural chaos that it reached still stand though…Toss in the political and we’ll see again why the PM had no choice. In addition, mediation was needed more urgently than investigation in January, thus, even if grounds for widespread investigation are present, returning to relative normalcy and ensuring that the interest of the children are paramount would be priority.

    Thanks for the banter however…

    Just observing.

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  6. St George's Dragon

    This thread has lost its way. It started as a commentary on whether the PM was entitled to intervene in a labour dispute.
    I don’t see how you could deny him that opportunity – subject, of course, to him not intruding on the proper roles of the Minister etc. If he was seeking to broker/mediate a solution, that must be acceptable.
    The problem lies in the PM’s timing. If he wanted to commission an enquiry, he should have done so when he first got involved, not 12 weeks later. It just makes it look as though he had failed to do his homework at the start.

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  7. An Observer..

    @ Caswell..
    You could not have been ” acting in self defence ” against one who NEVER ATTACKED YOU.. Hence , my question : whose fire rage have you been taking up ? I HAVE NOT CALLED ANY TRUCE WITH YOU ; I am simply sparing the readers your senseless , personal attacks directed at someone whom you think you know . NO MORE AND NO LESS .. talk about ” DOING THEIR MASTER’S BIDDING ” ! You should look into the mirror and repeat that statement . YOU have demonstrated some expertise in this regard . Good bye !!!!

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  8. @lemuel | May 14, 2012 at 2:54 PM | Please add me, in this instance, to your list of Legalese and An Observer and my old friend, Bushy.

    @Casewell. You sometimes write blogs of real brilliance and understanding and, unfortunately, you sometimes slum it. This is one of the latter occasions. Also, with respect, I have a BIG problem with the way you have tried to identify and out An Observer. The very strength and efficacy for change of the blogs lies in anonymity. That is basic. It is fine for you to use your real name if you wish, but you are way out of order if you try to indentify others. If you want to do that, go to BFP. I am seriously not amused.

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  9. An Observer..

    @ Amused.
    You don’t sleep ? Maybe you are an early riser . You will note that ever since the interview given by sir David Simmons to Timothy Slinger , in which he revealed that Barbadians will be shocked after he had made certain disclosures about the refusal to extend his tenure , was assessed on this blog , Caswell Franklyn has been on a crusade in respect of the identity of An Observer . You may therefore understand why I have twice recently asked him if he was taking up somebody’s fire rage for I have NEVER attacked him personally on this blog . You should have a peep back at that posting to see what I am talking about . Peace as usual my brother .

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  10. @An Observer & Caswell

    It is clear your exchanges have veered into a realm that is not ‘healthy’.

    The two of you have a reputation on the blog which punishes the BU family with the meaty considerations of the issues at play.

    Let us strive to keep it that way.

    Like

  11. An Observer..

    @ David
    I readily accept your censure . Indeed a reading of my post on May 14 , 2012 , at 11:07 pm will confirm my attitude to the ” unseemly behaviour ” . I need say no more . Peace as usual my friend .

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  12. To Amused:
    What list are you talking about? Bushy is my old friend and I like Legalese and An Observer. I just wanted to stop this ganging up on Caswell because for once they found a soft spot. Caswell is the “people’s Lawyer”.

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  13. Adrian Hinds

    @Caswell
    My haste to disagree with you is due to the speed you make a fool yourself. Did not the AX dispute reach an impasse???? Whatever the reasons for calling in the PM, you do agree it is an establish convention!

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  14. old onion bags

    Caswie boy ..yesterday you went after Sir Roy……today they come for you

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  15. Carson C. Cadogan

    This is one of the problems I have with Caswell, for some reason best known to himself he is always trying to identify posters.

    If a person wants to remain invisible, so be it.

    Because you show yours does not mean I have to show you mine.

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  16. @lemuel | May 15, 2012 at 9:21 AM | I am suprised that you cannot see what I am talking about. You said that Legalese and An Observer were siding with each other in disagreeing with Casewell. I asked you to add me to the list of Legalese and An Observer, since I agree with them and disagree with Casewell. However, you don’t have to add me to dissenting list if you think that I have been unclear and am actually agreeing with Casewell, which I deny. I admit that I agreed with Casewell’s blog on Leroy Trotman, but I did ask him in future not to write sense with which I could agree as it was no fun. So, this time, he did as I asked and wrote nonsense. Very obliging of him. So, with a very big LOL to An Observer, it appears that he is now in a unholy alliance with Blogger2012, Legalese, Bushy, Adrian and myself.

    @An Observer. Yes, I am an early riser. I suspect that like you, I like to get some work done before phones start ringing and interrupt my aged brain and easily distracted train of thought. And, as you know, it is no good telling people not to put calls through and not to disturb me, because they will and then tell me, “SORRY, I forget”. And, of course, I can always leave work early!!!!! Ring any bells? Peace, my unholy bro!!

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  17. To Amused:
    I am not concerned about them or you disagreeing with Caswell; I am concerned about what I saw as an attempt to so belittle him intellectually that he would disappear from this blog. I believe all of us here have the right to have an opinion.

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  18. Caswell Franklyn

    I wrote a post which suggested that the PM erred when he opted to bypass the established Public Service Commission in preference for a commission of inquiry to deal with the Alexandra issue. I pointed out that by using the commission of inquiry any guilty persons would escape punishment if they give truthful evidence. Rather than deal with the substance of my submission, a pantheon of Freundel defenders, lead by Legalese and An Observer, started to attack me personally and my intellect. Up to now they have not focused on the submission only on me personally. And now people get upset when I defend myself.

    An Observer even stated that I am picking up fire rage for David Simmons. He has more reasons to be grateful to Simmons than me, but he has new friends and chooses to bite the hand that fed him. I wish he would tear my post apart and show me where I went wrong. After all, that is how I learn, but he prefers to be nasty and attack me personally. Never fear I have already promised David that I will not out anyone on this blog, but I really feel that he should leave out the personal references and deal with the substance or lack thereof of my post. I think that is reasonable.

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  19. Sunshine Sunny Shine

    Caswell Franklyn

    I, unlike, others here would not attack you. You are one of the few whose views tend to be sound and spot on. From you much is learnt about public sector matters and the rules that govern and guide. You are knowledgeable in your specialised area and no one here can refute that. You are also one of a few who choose not to be anonymous. At least everyone here knows Caswell and knows that he is not afraid and will stand for what he knows to be right. But Caswell I am no law guru but I am darn good researcher and if you believe that those whom I thought are admonishing and guiding you are really vlifiers with a personal agenda to discredit your name then I sincerely apologise. But if what they say about the law is right I admonish you to listen and refrain from belittling or suggestive remarks. It just makes you look ordinary and touchy. They have a right to defend what they believe in and so do. If they support Fruendel that is their right. I think besides the clown that comes out of him sometimes I prefer him any day then the opposition leader and his gang of arrogant, pompous opportunistic gold diggers. I am wrong to prefer the PM?

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  20. Caswell Franklyn

    Sunshine Sunny Shine

    Like you I prefer Freundel to what the BLP is offering up and further I prefer him to the alternatives in his party. I have said that several times on BU and elsewhere. However, unlike people like Legalese and An Observer, I do not think that he is perfect and should be exempt from criticism.

    An Observer and I got along very well for years. When he was commenting under under several pseudonyms on another issue I pointed out to him that I was able to identify him from his writings. He admitted. Now because we are not singing from the same hymn sheet, I am the devil’s seed for him and he is doing everything to discredit me. He needs to address what I wrote instead of personally attacking me.

    You should realise that they have not responded to the fact that no one could be held liable for any wrongdoing if they speak the truth in evidence before the commission of inquiry. That is the crux of my submission. Rather than deal with that they sought to belittle me suggesting that I do not understand the concept of the rule of law. It is no big thing, Google it.

    They hijacked this post and redirected it to take attention away from the inept handling of the Alexandra affair. Maybe it is not inept but it might be the design of those who advised the PM.

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  21. Chris Halsall

    @Caswell Franklyn: “They hijacked this post and redirected it to take attention away from the inept handling of the Alexandra affair.

    Just wondering…

    As another who posts using your real name, do you not find it a bit strange just how far the “Anonymous” will go with their posts?

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  22. old onion bags

    Caswell
    What are you saying ? Another hidden conspiracy ? Well then could you support your opening preference ? So much underhandedness and deceit (AX)…how could anyone agree with your preference given your conclusion? You got me confused.

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  23. Caswell Franklyn

    Onions

    I see no contradiction in critcising Freundel Stuart over individual things. He is not Jesus Christ and will do things that displeases me, and when he does, I reserve my right to say so. For me the important is that I do not believe that he is a crook and I can live with that. That is not to say that others are that way inclined, but I have my beliefs which forces me to support Stuart for leadership of this country from among all those that are vying to be PM. I don’t think that hereafter he will do everything to my liking: when he strays from what I will say so. I am sorry for those that cannot accept that. I worship no man and unlike others I am not kissing anybody’s behind to get part of the fatted calf.

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  24. Absolutely amazed.

    @ Caswell Franklyn.
    God help those people who speak with you about anything bordering on confidential !! And you is a trade union leader !! wuh lord !!!!!!

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  25. Caswell Franklyn

    Absolutely Amazed

    Did you see or hear me mention the name of anybody that has spoken to me in confidence? I have even kept the names of persons that I was able to deduce from their writings confidential. By the way, that number has gone up to four which does not include the two that use multiple pseudonyms. I just call and tease them but I have not revealed any names and I don’t owe them any duty to be confidential. So Absolutely Amazed go and know your place!

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  26. Checkit-Out

    Caswell; I join with you in asking the posters, who know all about the rule and letter of the law, to give their opinion on the substantive matter you raised; i.e. Does the commission of enquiry route carry with it the likelihood that no one can be held actionably responsible for the alexandra thing if they are deemed to tell the truth at the commission? and also does this mean that the commission is doomed to failure as a method for correcting the alexandra wrongs expeditiously but could be used for updating laws and regulations eventually for the benefit of the entire education system?

    I also seem to remember in another discussion on the Alexandra affair that “an observer” suggested that the PM had solved the matter through the appointment of the new PSC which would presumably act where the old one had not, thereby suggesting that the PSC route was being actively considered.

    I wonder what caused the volte face?

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  27. @checkit-out

    Good point about the PSC. One must assume the PSC saw no grounds to act. Of course it places Caswell’s exposition on the matter under scrutiny.

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  28. Checkit-Out

    David; Yes! But as I said earlier in another blog on the AX matter, for the new PSC to act quickly on the matter, especially to act in the way envisaged by “an observer” would have indeliby stamped them as being total creatures of the PM.
    The alternative was for the new PSC to look at the matter carefully and deliberately. Such a look would not negate Caswell’s point re. their being the semi-ultimate authority in the matter, but would be too slow in the circumstances existing where everyone would have been calling for a resolution to get the children back to school quickly.

    FS’ solution of a Commission of Inquiry would have solved that aspect by putting a plaster on the wound but would have done little to solve the entire AX matter itself, if Caswell’s chapeau above is to be given credence. This would be because, after the CoI makes its recommendations arguably next year if it is done with the usual dispatch, nothing can be done to discipline any of the actors.

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  29. @checkit-out

    Understood!

    The reality is that there is so much confusion, a lack of credible info and political mumbo jumbo that the conversation around this matter has become highly speculative. We have subject matter experts who have firmly lined up on both sides of the issue.

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  30. Checkit-Out

    David; In other words, if Caswell is to be believed, the Commission of Inquiry is really only useful as an exercise in kicking the problem onto the next administration which will hopefully solve the matter in a sustainable all-encompassing way.

    That is where the discussion on this matter should be centred, not on Caswell’s presumed personal proclivities.

    Does the spirit of the law necessarily trump the letter of the law (as interpreted by Caswell) in this case? That is where the discussion should be.

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  31. Is this You ?

    Caswell, first let me make certain that I am reading the writings of the Caswell that I have known in the past ?

    Let me know if this maybe the same Franklyn whom I know to have been FIRED from every position known to him ?

    Is this the Franklyn that on arriving to Sandhurst spent a mere 18 days onsite before becoming more knowledgeable about the operations of Sandhurst than his instructor and was FIRED and sent back to Barbados forthwith ?

    Is this the same Franklyn that was the first order of business to have Mottley contend with on becoming the Attorney General was to proceed to FIRE you and lay criminal charges against for FRAUD and THEFT ?

    Is this the same Franklyn who has been FIRED from each and every job he has ever held including being FIRED twice for the same union ?

    Is this the same Franklyn that is about to be FIRED from his one man union ?

    If this is the Franklyn that I know I hardly think that you have a creditable voice an honest voice or a voice that anyone should listen to or take advice from as you the listener may only be guided down a path of FIRING or TO FACE CRIMINAL CHARGES IN THE LAW COURTS OF BARBADOS FOR FRAUD AND THEFT.

    Your Honour this person that stands before you here today is nothing more nothing less than a fraud with an allergic reaction to honest and sincere hard work and is a stranger to the truth, guilty as charged !!!!

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  32. BU’s antennae always become highly trained when there is an obvious concerted effort to attack the messenger and NOT the message.

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  33. Is this You ?

    David the messenger lacks credibility and so therefore it is a useless discussion, he is in the same boat as Hederson Bovell who has finally been charged and is before the courts for rape.

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  34. Caswell Franklyn

    Checking-Out

    Thanks for trying to put the discussion on track.

    David

    You don’t have to defend me: I am used to the usual array of idiots making up things about me. For example, I have never been anywhere near Sandhurst. On the other hand I attended the Canadian Forces Officer Candidate School and after four months I was injured and could not continue because I had to have surgery. I came back to Barbados and the surgery was done at the QEH, but “Is That You’s” version sounds much better you must admit.

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  35. old onion bags

    Caswie
    …the boys throwing some licks in ya …lol Brigadier Caswell sandhurst man…..LOL

    I tell ya not to attack Sir Roy…….”how quixs the winds turns”

    Like

  36. Checkit-Out

    Miller; Where’s millertheannunaki? Haven’t seen any of his posts for a long time. I thought you might know as the two of you appeared to have formed a tag team, of sorts, up to a few months ago.

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  37. Is this You ?

    The one man union Franklyn is loyal to three things money, cars and David Simmonds to the point that he opted to defend Simmonds even wehen he did an abundance of nonsense in the press a couple of weeks ago, when in a drunken interview that he launched the blp campaign from, he could tell all about why he is no longer the CJ !

    Maybe he should also tell why he ever appointed the CJ ????

    These Mottleys and Simmonds believe that their is a right an entiltlement of their ownership to dictate to the people of Barbados from their Throne.

    Massa days Dun !!!!!

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  38. old onion bags

    No check-it….I am like you …awaiting his return.

    Like

  39. @ Is this you
    You sure Massa days done? Do explain the DLP candidate for Christ Church West?

    Like

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