The Caswell Franklyn Column – Beware of Prime Ministers Bearing Gifts
In my last column that was published on February 11, 2018, I was extremely critical of what I perceived to be Government’s attempt to gain political advantage by dangling the prospect of thousands of permanent appointments before temporary officers in the Public Service – The Caswell Franklyn Column – DLP Preparing to Fool Public Servants a Third Time..
Generally, the reactions to the article were favourable but I was taken aback by one temporary public officer who suggested to me that my comments might cause the Prime Minister to change his mind; and by so doing, those thousands of temporary officers would not get pensions. Those views clearly demonstrate a dire need for some type of formal induction for recruits to the Public Service. At present, persons, who are employed in the service, are just thrown in and left to find their way on their own. Today I would like to disabuse the minds of public officers from those uninformed views.
In order to eliminate political patronage in the appointment of civil servants, the first independent civil service commission was established in England in 1855. It was solely responsible for appointments and disciplinary control of civil servants.
This model was thought desirable for a newly independent Barbados. Consequently, the original 1966 Constitution did not provide a role for the Prime Minister in civil service appointments, below the level of permanent secretary. Section 94.(1) of the Constitution provides that the power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices is vested in the Governor-General, acting in accordance with the advice of the Public Service Commission.
Politicians found it hard to accept that their preference for a particular person to be appointed could be thwarted by unelected officials. As a result, the Constitution was amended to require the service commission to consult the Prime Minister on the appointments to the post of head of department, however styled. Unfortunately, that amendment, found at section 99.(2) has been misinterpreted to mean that the Prime Minister selects persons to become permanent secretaries, heads of department and their deputies.
Constitutionally, at least, the PM has no say in the appointment of other public officers. Mind you, I think that this point was lost on him when he signed the Public Service (General) Order, 2016 on October 21, 2016. It contained a provision at paragraph 10 where he deemed certain persons to have been appointed.
The persons preparing that order should have been aware of the case involving the former headmaster of the Lodge School, Aurelius Smith, where the court held:
Parliament has no power to deem persons to have been appointed to the public service because its members were not members of 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.
Similarly, the PM is not a member of the service commission nor is he Governor-General and can therefore make no appointments to the Public Service. Any person who was deemed appointed by the PM could one day find that his appointment is declared to be invalid.
The question of temporary officers being denied pensions, even though they would have completed the qualifying number of years, has already been settled since 1998. Prior to 1998, a temporary public officer was not entitled to receive a pension from the Treasury. However, the Pensions Act was amended by adding a new section 2A which states:
This Act applies, with the necessary modifications, to a person who holds an office that is not established under section 2 of the Civil Establishment Act, Cap 21, and who
(a) is employed on a full-time basis; and
(b) is not employed on a contractual basis,
as it applies to an officer who holds an office established under that Act.
Put simply, non appointment is no longed a bar to public servants from receiving pensions from the Treasury.
Anyone familiar with the story of Helen of Troy would be aware and understand the admonition: “Beware of Greeks bearing gifts”. Likewise, temporary public officers should be beware of Prime Ministers bearing gifts.