In the Belizean case of Carl Smith et al v The Attorney General (1985) the issue of the transfer of public officers arose.
The plaintiffs, four teachers at the Belize Teachers’ College, were sent letters by the acting chief education officer that they would be posted or seconded to the Belize Junior Secondary School.
Each plaintiff alleged that they were transferred without his or her consent and sought a declaration that such a transfer was unconstitutional and void.
The court first had to consider whether the word “posted” meant to transfer.
Moe C. J. said: “The effect of the respective letters was to require the person concerned to “shift”, “move” or “go” from duties in one post to duties in another post. To move from one place to another place is to transfer and it is a transfer by whatever term the move is described, whether it be shift, move, post or transfer.
Further it is a transfer notwithstanding that the “shift” or “move” or posting is not permanent.”
“The next issue is whether the transfer was properly effected. Who has jurisdiction to transfer such public officers? Section 106 of the Constitution provides “(1) The power to appoint persons to hold or act in offices in the public service (including the power to confirm appointments) and subject to the provisions of section 111 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Services Commission constituted for each case as prescribed in section 105(11) of this Constitution”.
“It is further provided in section 123 (ibid) (1) ‘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 . . .’ .
“The constitution has thus vested in the Public Service Commission two classes of power: (I) the power to make appointments to the service, promotions and transfers within the service, and (II) the power to remove and exercise disciplinary control over members of the service.
“There are certain exceptions provided for in the said section which are not of concern here. It would be seen from a careful study of the constitution that the powers thus vested in the Public Service Commission were to the exclusion of any other person or authority.
“I observe, firstly, that the provision contained in section 106(1) is part of the chapter similar to chapters contained in many constitutions of the new Commonwealth.
“The purpose of these provisions such as are set out in Chapter VIII of the Constitution placed under the head “The Public Service” is to isolate members of the public service from undue influence and unwarranted interference.
“Having vested the commission with the powers above, the Constitution also excludes it from being itself a part of the public service, secures its independence of the executive and legislature and provides security of tenure.
“Secondly, there cannot be two authorities with concurrent power or jurisdiction to make appointments or promotions or transfers. The Constitution is the supreme law of the land. It has vested the powers under consideration in the Public Service Commission. Any other law which provides for the contrary is void in that respect and the Constitution must prevail.
“It is to be noted also that by virtue of section 106 (5) the commission may delegate any by all that it was the Acting Chief Education Officer who performed the act under consideration.
“There is no evidence that he was simply communicating a decision of the Public Service Commission to transfer the persons concerned or that the power of the commission to transfer was delegated to him. In the result, I must hold that the transfer of the Plaintiffs was not in keeping with the Constitution and thus invalid.”
What the above case demonstrates is that care must be taken to ensure that only the designated body or functionary must exercise a power granted under the constitution.
• Cecil McCarthy is a Queen’s Counsel.