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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No Comments on “Commission of Inquiry: Rule of Law, What a Joke!”

  1. Checkit-Out May 16, 2012 at 7:06 AM #

    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?

    Like

  2. David May 16, 2012 at 7:22 AM #

    @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.

    Like

  3. Checkit-Out May 16, 2012 at 8:06 AM #

    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.

    Like

  4. David May 16, 2012 at 8:22 AM #

    @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.

    Like

  5. Checkit-Out May 16, 2012 at 8:24 AM #

    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.

    Like

  6. Is this You ? May 16, 2012 at 8:39 AM #

    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 !!!!

    Like

  7. David May 16, 2012 at 8:49 AM #

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

    Like

  8. Is this You ? May 16, 2012 at 8:57 AM #

    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.

    Like

  9. Caswell Franklyn May 16, 2012 at 9:08 AM #

    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.

    Like

  10. old onion bags May 16, 2012 at 9:18 AM #

    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

  11. Checkit-Out May 16, 2012 at 9:25 AM #

    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.

    Like

  12. Is this You ? May 16, 2012 at 9:32 AM #

    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 !!!!!

    Like

  13. old onion bags May 16, 2012 at 9:36 AM #

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

    Like

  14. Enuff May 16, 2012 at 6:31 PM #

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

    Like

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