The Caswell Franklyn Column – When Parliament Oversteps

Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

IN THE DYING days of the Arthur Administration, Government went to Parliament and hurriedly passed, what turned out to be, the controversial Public Service Act 2007 which came into force on the last day of that year.

Many would say, and I would be the first to agree, that certain provisions were designed to appeal to the public service demographic of the electorate.  However, the administration had become too unpopular and elections were too close for the news of the goodies, in the act, to disseminate throughout the Public Service in order to influence the outcome of the polls.

In 2007 there were in excess of 3 000 temporary public officers who had been working continuously for three or more years. Government, recognising that parliament did not have the power to appoint public officers by an ordinary act of parliament, crafted legislation to achieve its goals in such a way that would not breach the Constitution.  Section 94 (1) of the Constitution states:

Subject to the provisions of this Constitution, power to make appointments to public offices and to 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

 The Arthur Administration wanted to appoint those 3 000 persons and it seems that it would not be daunted by a little detail of the Constitution.  To achieve the goal of providing security of tenure for those workers, Government adopted a novel approach in section 13 (7) of the Public Service Act that didn’t offend the Constitution.

That section provides that any person who is not appointed but had been employed for not less than three years prior to December 31, 2007 and qualified for the post, shall be entitled to be appointed.  Note that the act gave them an entitlement not an appointment that could only be done in accordance with section 94 of the Constitution. The section went on to say that such persons shall be treated as being so appointed.

Back then Government provided the Public Service Commission with sufficient posts to accommodate every person who met the requirements.  Section 13. (5) established all temporary offices that were in existence for three or more years at December 31, 2007.

Remarkably, in all the confusion to fill 3 000 posts some persons, who did not meet the requirements, got appointments and approximately 250 deserving souls were left out.

In order to rectify that problem, the Personnel Administration Division convinced the Minister with responsibility for the Public Service (the Prime Minister) to create and fill the required posts, by including some peculiar provisions in paragraph 10 of Public Service (General) Order, 2016 that was made by the Minister on October 21, 2016 and published as S.I. 2016 No. 94.

Paragraph ten provides that any person who satisfied the requirements for appointment under section 13 (7) of the Public Service Act but was not appointed is deemed to have been appointed on December 31, 2007.

Please do not misunderstand my intentions.  I am happy that Government is moving to correct the injustice that was meted out to these workers but I am concerned about the method that was adopted. The Prime Minister has no power to deem anyone appointed in the Public Service and should not allow himself to be misled into taking such action.

In 1984 the Public Service Commission (PSC) purported to suspend the headmaster of the Lodge School, Mr C. Aurelius Smith, from office and ordered him to hand over the management of the school to his deputy.  He refused to comply with those instructions and continued to perform his duties, contending that the PSC had no jurisdiction over him as he was not a public officer.

The Attorney General and the board of management of the school applied to the court for an injunction to restrain Mr. Smith from continuing to perform his duties.  The court held:

“Parliament has no power to deem persons to have been appointed to the public service because its members were not the Public Service Commission which was charged with advising the Governor-General on making appointments to public offices.

As a result, section 65 of the Education Act 1981, which purported to deem teachers to be public officers but had not been made by the process prescribed by section 49 of the Constitution for altering the Constitution, was invalid.”

If Parliament does not have the power to deem persons to be public officers, where did the Prime Minister derive his power?

Caswell Franklyn is the General Secretary of Unity Workers Union and a social commentator. Email: caswellf@hotmail.com.

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26 Comments on “The Caswell Franklyn Column – When Parliament Oversteps”

  1. George C. Brathwaite February 12, 2017 at 2:13 AM #

    As usual interesting arguments and useful insights. Following Caswell’s arguments, there is a consistency with which the current Prime Minister and this DLP administration attempt to abandon rule of law and best practices for other than good reasons. I suspect that in the very near future a series of court matters will arise. But a question for Caswell, to what degree do the trade unions have internal mechanisms for the review of laws that hurt their memberships, and will they rally together to ensure that employees are not disenfranchised or unfaired by going to the courts as a single entity?

    Like

  2. Caswell Franklyn February 12, 2017 at 3:44 AM #

    George

    As far as I am aware other trade unions welcomed the order. You see, the Prime Minister was not the only person that was deceived by the Personnel Administration Division. Arthur provided enough posts to appoint all of the temporary officers who had been working for three or more years. Instead of complying with government policy, certain named persons filled approximately 250 those posts with persons who did not qualify ((Akanni’s stepmother was one of those persons that was appointed contrary to the law).

    Like

  3. Dompey February 12, 2017 at 7:53 AM #

    Caswell Franklyn

    “If parliment does not have the power to deem persons to be public officers, where did the prime minister derive his power?”

    Question: is there a conspicuous definition, specifically articulating the scope of the prime mministe’s role in the Barbadian Constitution? But from what you have confabulated above, there seems to be clear evidence that the prime minister has overreached the periphery of his constitutional autonomy? So that being said: it leaves me to concluded that there aren’t sufficient checks and balances on the prime minister’s powers, and that additional improvements are warranted to discourage overreaching by the office of the prime minister.

    Like

  4. Bush Tea February 12, 2017 at 8:30 AM #

    @ Caswell
    You could really hush.
    The fault, dear Brutus, is not in our stars, but in ourselves….. YOU specifically.

    Every shiite that this PM does is flawed.
    He had to backtrack on the finger-printing scam
    The Sugar factory is on hold due to a neighbour
    The Alexandra solution was a poison pill
    He promised no cut in education support
    He promised no layoffs
    He said Four Seasons was on track
    He promised action on Sam Lords
    He said he knew nothing of CAHILL
    The Shite tax had to be revoked
    …. the man is unquestionably a joker….
    The ONLY thing that he has successfully completed is the monument to Satan in the middle of the damned Garrison…

    But here is the REAL joke….
    People like yourself, Commissiong, Jeff and others who DO have some skills and talent …. and most importantly, ….some integrity and pride, sit around talking shiite while Rome burns….

    A kakistocracy is only possible when good men do nothing,…
    Who then can blame the incompetent JAs who default into leadership?

    Like

  5. Anonymouse -TheGazer February 12, 2017 at 9:18 AM #

    Going to second the Bushman
    “But here is the REAL joke….
    People like yourself, Commissiong, Jeff and others who DO have some skills and talent …. and most importantly, ….some integrity and pride, sit around talking shiite while Rome burns….

    A kakistocracy is only possible when good men do nothing,…
    Who then can blame the incompetent JAs who default into leadership?”

    Like

  6. Caswell Franklyn February 12, 2017 at 9:29 AM #

    I have no interest in forming or joining any political party. I will assist anyone who forms the government if I believe they are acting in the best interest of this country. This present administration has failed to do so and should have been removed by people’s power long ago.

    Like

  7. Piece Uh De Rock Yeah Right - INRI February 12, 2017 at 9:44 AM #

    Dear Mr Franklyn,

    As usual you write some provocative articles that give insight into the machinations of these Machiavellian scoundrels both BLP and DLP.

    What you have written here is extremely important BUT DE OLE MAN FEARS THAT 99% of those who read it WILL NOT UNDERSTAND IT.

    So I ask de grandson to do a simple graphic to show what the tricks employed were.

    You will unnerstand that the grandson is not a technocrat like you and the others here so i hope that he got everything that you said in a format that makes it simple for people (read the ingrunt electorate of Barbados) who dont give one shyte about what is going on in parliament

    Like

  8. ac February 12, 2017 at 9:47 AM #

    All the critics of govt them worthwhile or otherwise does NOT HAVE THE INTESTINAL FORTITUDE to face the political fire which would fall upon them by friend and foes but rather sit comfortably behind a masked computer and reaped the fawning adulation of their supporters who regularly streamed across social media
    Governance is by no stretch of the imagination easy it is folly or anyone to believe that if any individual has a point of view that sounds realist that the said point of view when set against governing laws can withstand the test
    The newly elected President of the USA is a prime example of talking the talk and walking the walk can lead ideas into a constitutional brick wall of shame and embarrassment

    Like

  9. Observing February 12, 2017 at 10:33 AM #

    @podryr

    Well done!

    Uh got it now 🙂
    .

    @Caswell
    That single section in 2007 coupled with the abuse of the act (recruitment etc.) in the ensuing years has created confusion, divisiveness and an un-level playing field for unpolitical aspirants to promotion.

    Curiously strange that the persons with the power to amend the fundamental flaws with the act haven’t found the courage to do so except for some token insertions in 2010.

    “the more things change, six remains half dozen”

    Just observing

    Like

  10. William Skinner February 12, 2017 at 11:05 AM #

    These opportunistic party hacks and apologists really need to at least demonstrate a little objectivity. Here Caswell clearly explains that both these parties are engaging in banana republic politics/governance. However, the BLPDLP hacks are trying to infer :It’s not we but dem. Same old same old.
    By the way both BLP and DLP abandoned the collective bargaining principle and used the same parliament to legislate salaries for public servants.

    Like

  11. Bush Tea February 12, 2017 at 12:50 PM #

    Well said William @11.05 AM

    @ Caswell who said “I have no interest in forming or joining any political party.”
    LOTTA SHIITE…!!!
    Party shiite!!! …there are many ways to skin a damn cat…
    BUP is a movement …not a damn party.

    …besides,
    Nobody cares what your interests are….
    Do you understand NATIONAL RESPONSIBILITY?
    Shiite man – were you not a soldier?
    Ask not how you can’t to achieve your OWN interests ….
    RATHER…ask how you can serve the interests of the country.

    What!!??!!
    Do you think Bushie (a man who is rich as shiite) ‘likes’ this BU whacking business…?
    BUT…it is what the bushman has been commissioned to do…

    You are a reincarnation of Jonah …who wants to avoid his clear calling…
    looking for sweet life, …while the city dies for lack of his guidance…

    Take care there is not a whale in your future… 🙂

    Like

  12. Piece Uh De Rock Yeah Right - INRI February 12, 2017 at 1:07 PM #

    “A Whale!!!..”

    More like a Mugabe…

    And Mr Franklyn of all people should know how that whale does move against her enemies…of whom de ole man numbereth…”

    Once upon a time de ole man was of a mind to assist dem but, without any rhyme or reason or should de ole man say with specific self induced reason de nature of the scorpion surfaced.

    Wunna does be impressed wid de hype.

    “She does stand up in front uh wunna and talk a lottta long talk and regurgitated shyte and Bajans, being the profligate consumers of jobby dat we are, sucks it all up.

    And want more!!!

    Bottom feeders, land crabs around a WC Pitt (no not de feller from Harsun…)

    De ole man was looking at this bow that de footballers in cameroon are giving to their President

    For the full article see http://www.bbc.com/news/world-africa-38920933

    Not only do we bow to Fumbles and Mugabe in the same way, but we apply our mouths to the appropriate aperture, and suck…

    Bajans Need Change

    Like

  13. David February 12, 2017 at 1:08 PM #

    @Bush Tea

    Always have some time for your goading of Caswell to relevant his participation in the affairs of the country by getting involved in the political stream. The simple logic is that this is where meaningful change can be most effected given the state of affairs of country. Where Caswell’s column always fall short (no disrespect intended) is that we always appear helpless how to hold these JAs accountable. They continue to laugh at we.

    When will 10 good men emerge to butt heads with this entrenched political class?

    Like

  14. Caswell Franklyn February 12, 2017 at 1:48 PM #

    David

    There are mechanisms, on paper, to hold our officials accountable but there are practical applications that allow wrongdoers to get away scot-free:

    The DPP is supposed to prosecute crime but he does not have investigative staff so he has to rely on the police. If the police are not minded to investigate, probably because the same people that they would be investigating are then called upon to have some say on their career advancement.

    Also, the DPP must demit office at age 62 years. However, there is provision in the Constitution (big “c”) that allows him to continue until age 65. That might be enough inducement to prevent a DPP from going after crooked politicians who would make the recommendation for him to continue in office.

    Additionally, the post of DPP is not at the apex of the public service legal careers. A DPP might fancy his chances of becoming a judge of the High Court, justice of appeal or even chief justice and would have to be careful how he prosecutes politicians and their friends and family, if he ever hopes to achieve those heights.

    The above reasoning could apply to the Chief Electoral Officer, if he ever attempts to prosecute politicians who overspend or otherwise breach the electoral laws.

    On the other hand the Auditor General has the power to investigate and report on wrong doing but he has no power to enforce the law.

    Our laws are designed to give an appearance of checks and balances but in reality those charged with the responsibility of enforcement have their hands tied with political rope.

    Sent from my iPad

    Liked by 1 person

  15. Piece Uh De Rock Yeah Right - INRI February 12, 2017 at 1:49 PM #

    @ David King

    You sell yourself short sir as such relates to “when will good men emerge to butt heads with this entrenched political class…”

    You really dont know what BU is doing or has done in Barbados my man….!!

    You got dese fellers pun de ropes…

    Dis Barbados UnderGround that has waged battle with their lawyers in the Office of the Attorney General who have (i) written you cease and desist letters (ii) sought to bring down the website through foul means and still trying (iii) written to WordPress lawyers and sought to bring down the website (iv) conspired to do harm to your revenue streams, you do yourself a serious injustice.

    Why you tink dem want to buy you out?

    cause dem love you?

    Or love The Most Respected Blog in Barbados?

    Why you tink dat Aussie Moore trying to get we Anonymice Names?

    Cause he love we? or will respect our opinions more?

    You is part of the COMMODITY dat de ole man was ranting bout a few days ago.

    You and Jeff Cumberbatch and Caswell Franklyn

    Wunna is de fellers who is among the “known” and wunna is feared.

    Let either Jeff or Caswell say dat dem endorsing Party X and what whu going happen!

    Dem is men dat is feared.

    And let it be that you self start saying dat you pushing for something other that BLP or DLP

    Steupseeee amn overnight watch whu going happen Honourable Blogmaster.

    Peeple enough going start axeing you whu you doing and all uh dem who friendly wid you now going start to stab you in you back, you watch.

    I myself watching all of what happening carefully too

    Like

  16. Pachamama February 12, 2017 at 2:10 PM #

    Last week the argument was made about the ‘supremacy of parliament’.

    How is it now possible for the Lord and master of us all to err?

    For we cannot have it both ways

    Like

  17. David February 12, 2017 at 2:28 PM #

    @PUDRYR

    All the good work the BU family do (you included) we always need boots on the ground. Some of us already are on the ground but we need the ‘spring’. So far Bajans talk a good talk. We are not saying to do as th Dominicans, Guyanese, Jamaicans do because look at the state of their countries but we need to up de ting.

    On Sun, Feb 12, 2017 at 5:49 PM, Barbados Underground wrote:

    >

    Like

  18. Alden Blackman February 12, 2017 at 2:36 PM #

    @ Bush Tea

    @ Anonymouse-TheGazer

    I agreed with you two,the men only talk, to appear relevant, I speak from a position of find out the hard way, you can add George Brathwaite to the list, the difference between them and the politicians is that the politicians have to come down and beg or buy a vote .

    Like

  19. Bush Tea February 12, 2017 at 3:06 PM #

    @ Caswell 1:48 PM

    Here again you show a level of understanding of the shiite that we face …that is MILES above the average Joe’s level…..
    You exhibit a resistance to being bribed that is almost foolhardy by Bajan (lack of) standards…
    You show a disdain for wealth and material things that is almost inexplicable in this albino-centric world…
    …while concerning yourself daily with the RIGHTS of the downtrodden …and the rule of Law.

    Cud shiite Caswell …..
    …mean yuh can’t see that you have been put here for a REASON?
    …you think all those years of doing shiite in the Credit Unions and in the BLP was for sport?
    …you think it a coincidence that you have escaped the brass bowl albino-centric trap..?

    YOU WERE BEING PREPARED.

    BBE does not pull the final flush …even on shiite people… without giving them EVERY LAST chance to open their eyes and see….
    BU David has been sent with a big-ass light called BU
    Bushie in the background with a whacker…
    ….But you have been prepared for a CRITICAL role in governance.
    If (between you and the brass bowl Bajan sheeple) do not wake up SOON, …and use the GOD-GIVEN talents we have been blessed with, then it won’t be much longer before the big flush….

    Like

  20. David February 12, 2017 at 4:22 PM #

    @Bushie

    Why does Caswell answer the call to serve the credit union but ignores the other? What makes the calling of one any different to the other? Both are to serve the people not so?

    Like

  21. ac February 12, 2017 at 4:43 PM #

    Because Caswell can call most of his own shots it is not the same as having to govern a nation of two hundred and seventy thousand people all having different agendas and all wanting to suck off the same nipple all at the same time until they are sore
    Caswell with all his crticisms he is no fool he understands that the level of responsibility that engulfes and overtakes one personnel life being a minister of parliament
    Therefore Caswelll rather plays a safe game enjoys the spotlight and sits high on a self serving perch as an untouchable
    Good job Caswell

    Sent from my apple i phone

    Like

  22. Well Well & Consequences February 12, 2017 at 6:00 PM #

    Not only does Caswell explain in detail so that a 10 year old can understand, but Piece and his grandson gave it in pictures with color, I am sure using PowerPoint or some other just as effective software, that 5 year olds master…and the ACs still dont get it…steupps.

    Like

  23. Well Well & Consequences February 12, 2017 at 6:12 PM #

    ACs…suppose, impossible, but suppose Fruendel and & Co had to govern Trinidad, Jamaica, Cuba, with millions of people….or US with over 1/4 billlion people or UK with 67 million people or Canada with 34 million people…what would they do.

    Barbados has 285, 000 people

    China 1.3 billion people
    India 1.2 billion people
    Africa 1.2 billion people…Africa reached the 1 billion population mark last year, I did not even realize.

    Now ya see how stupid you sound…Barbados is just this side of underpopulated.

    Your prime minister and ministers are lazy and incompetent. ..own it.

    Like

  24. Caswell Franklyn February 12, 2017 at 7:35 PM #

    Piece

    Your graphic made the matter so simple that any fool could understand. But could you ask your grandson to do one that the Cabinet could understand bearing in mind that you have people like Sinckler and Kellman that are not just any fools. They excel at it.

    Like

  25. nineofnine February 12, 2017 at 8:03 PM #

    The contributors to BARBADOS UNDERGROUND are displaying the fortitude for sound political governance, It is time to formulate a thrust in taking the lead to govern.

    Like

  26. Well Well & Consequences February 13, 2017 at 10:28 AM #

    http://www.nationnews.com/nationnews/news/93510/central-bank-governor-injunction-stay-office

    With 2 years to go on his contract and at 70 years old…why is Worrell filing an injunction against government, how much will it cost tax payers, he could just take a package and go merrily on his way. Go to Disney World. ….

    if him and Sinkclar are at war, that is their business, hope it does not cost taxpayers. ..

    ya see what happens to yardfowls.,.ACs..Alvins, et al.

    Like

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