The Caswell Franklyn Column – When Parliament Oversteps
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: firstname.lastname@example.org.