Saturday, April 20, 2024

EVERYDAY LAW: The power to transfer

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Over the past few weeks, I have been examining cases in which the courts have affirmed the right of office holders under the Constitution to the protection offered by the Constitution.
Those cases have all dealt with the issue of termination or revocation of appointments.
In this week’s article, I wish to focus on the power to transfer.
By way of introduction, I refer to page 188 of Commonwealth Caribbean Public Law by Dr Albert Fiadjoe where the author, writing about West Indian Constitutions, observes:
“The constitutions vest the Public Service Commissions with the power to appoint, discipline and remove public officers. In some territories, the constitutions vest in the Public Service Commissions power to appoint, discipline and remove public officers. In others, they vest power to appoint, discipline and remove public officers in the Governor General, acting on the recommendations of the commission.
“On occasions, when bodies or functionaries other than the designated authorities have sought to exercise these powers, their actions have been swiftly caught in the web of the ultra vires rule.  Similarly, where the Public Service Commission itself has sought to exercise powers not conferred upon it, there again the courts have declared the purported exercise of the non-existent power to be ultra vires.”
Does the power to discipline imply the power to transfer?
In the Belizean constitution, for example, such unclarity has been eliminated by providing clearly that the power of transfer vests in the Public Service Commission.
Section 123 (1) puts the issue beyond doubt by providing that: “any reference in this Constitution to power to make appointments to any public office shall be construed as including a reference to power to make appointments on promotion and transfer to that office and the power to appoint a person to act in that office during any period during which it is vacant or the holder thereof is unable to perform the functions of that office.”
In the case of Barbados, the issue has been canvassed in the case of Brathwaite v The Chief Personnel Officer et al (2009) a decision of Justice Margaret Reifer at paragraphs 100 and 101:
“All parties are agreed that the combined effect of section 94 and section 117 (3) of the Constitution of Barbados is that appointments in the Public Service, including promotion and transfer, are made by the Governor General acting upon the recommendation of the appropriate Service Commission.”
Section 94 states: “(1) Subject to the provisions of the Constitution, power to make appointments to public offices and to remove 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.”
101. Section 117 (3) Chapter X Miscellaneous and Interpretation Act states: “Any reference in this Constitution to power to make appointments to any office shall be construed as including a reference to power to make appointments on promotion or transfer to that office and the power to appoint a person to act in or perform the function of that office during any period during which the holder thereof is unable (whether by reason of absence or infirmity of body or mind or any other cause) to perform those functions.”
Brathwaite’s case concerned the temporary transfer of Mr Brathwaite by the Chief Personnel Officer from the established post of Principal Training Officer to an un-established post of Special Assignments Officer.
The term used at the time of the transfer was “seconded”. The Court held that a secondment was a transfer, albeit a temporary one.
In next week’s article, I will discuss Brathwaite’s case and Smith v Attorney-General of Belize which both deal with the issue of transfer of public officers.
• Cecil McCarthy is a Queen’s Counsel.

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