Events over the past week relating to the action taken against the Commissioner of the Police and the subsequent comments make it necessary for me to discuss the role, powers and functions of service commissions appointed pursuant to the Constitution. This article is the first of a series on this subject.
In the famous Judicial Committee of the Privy Council decision on appeal from the Court of Appeal of Trinidad and Tobago, Endell Thomas v The Attorney General (1981), Lord Diplock, delivering the judgment of the court, outlined the purpose of the constitutional provisions with respect to the service commissions in Westminster-style constitutions in the following words:
“The whole purpose of Chapter VIII of the Constitution which bears the rubric “The Public Service” is to insulate members of the civil service, the teaching service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the Government of commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of service.
These autonomous commissions, although public authorities, are excluded by section 105(4)(c) from forming part of the service of the Crown.
Subject to the approval of the Prime Minister they may delegate any of their powers to any of their members or to a Service Commission to an officer of the Police Force; but the right to delegate, though its exercise requires the approval of the Prime Minister, is theirs alone and any power so delegated is exercised under the control of the Commission and on behalf of the Crown or of any other person or authority.
In respect of each of these autonomous commissions, the Constitution contains provisions to secure its independence from both the executive and the legislature. No member of the legislature may serve on the commission; all members must be appointed for a fixed term of years which must not be less than three or more than five, during which a member may only be removed for inability to discharge his function or for misbehaviour.
The quarantine period imposed by making it a requirement of eligibility that a member shall not have served in any public office within the last three years and also making him ineligible for appointment to any public office for three years after ceasing to serve as a member of the commission is clearly intended to avoid any risk of his being influenced in favour of the executive by considerations of advancement in his own career.”
The above words with some adjustment for the different details of the Barbados Constitution are applicable to the Police Service Commission established under our Constitution.
For example, in our Constitution the members of the commission may be appointed for three years or less as specified in the instrument of appointment.
Additionally the quarantine period imposed for making it a requirement of eligibility is that a member must not have served in any public office for the year immediately prior to his appointment.
However a member of the Public Service Commission once appointed cannot be removed or suspended from the position except for inability to discharge his functions or for misbehaviour.
The provisions relating to the appointment of members of the Police Service Commission are found in section 91 of the Constitution. Members are appointed by the Governor General, acting on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.
Section 91(2) provides:
“No person shall be qualified to be appointed as a member of the Police Service Commission if he is a member of either House or a public officer.
The provisions protecting them from arbitrary removal are found in section 105 of the Constitution.
Section 105 (1) and (2) provide as follows:
“105 (1) Where it is provided in this Constitution that this section shall apply to any office, a person holding such office (in this section referred to as “the officer”) shall not be removed therefrom or suspended from the exercise of the functions thereof except in accordance with the provisions of this section.
(2) The officer may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body of mind or any other cause) or for misbehaviour.”
• Cecil McCarthy is a Queen’s Counsel.