Section 96(1) of the Barbados Constitution reads: “Subject to the provisions of the Constitution, power to make appointments to offices in the Police Force, and to remove and 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 Police Service Commission.”
Some Caribbean constitutions, like Barbados’, repose the power to appoint, discipline and remove police officers in the governor general or governor acting on the advice or recommendation of the Public or Police Service Commission. Others repose the power in the Service Commission itself. Others have a combination of the above provisions with, for example, officers below the rank of deputy commissioner appointed by the commission itself.
For example, Section 91(2) of the St Lucia Constitution provides: “The power to appoint persons to hold or act in an office in the Police Force below the rank of commissioner of police but above the rank of inspector (including the power to confirm appointments) and, subject to the provisions of Section 96 of this constitution, the power to exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission.”
Even though the above provisions and similar provisions are worded differently from the Barbados provisions the substance is essentially the same because, in cases where the power to appoint, remove or discipline is vested in the governor general or governor, that person is required to act in accordance with the advice of the particular Service Commission.
In Barbados the exercise of the Governor General’s functions is dealt with in Section 32 of the Constitution.
When one reads Section 32(3) in conjunction with Section 32(1) (a) it is quite clear that the Governor General must act in accordance with the advice of the Police Service Commission, with respect to matters relating to the appointment, removal or discipline of the Commissioner of Police.
Section 32(2) of the Constitution permits the Governor General to once refer the “recommendation back for reconsideration by the person or authority concerned”. But the authority has the option to stick with its original recommendation if it so desires.
The above interpretation of the relevant constitutional provisions is so well accepted that it is rare to find any discussion of the subject in the cases.
One such comment, even though not relevant to the case under consideration, occurred in a decision of Justice Rita Joseph-Olivetti in the Eastern Caribbean Supreme Court for the British Virgin Islands (BVI). The case to which I refer is Julian Willock v The Attorney General Et Al (2011) where the following was stated at paragraphs 31 and 32 of the judgment while discussing the BVI constitution: “(Paragraph) 31 Article 92(1) endows the governor with power to appoint and discipline public officers.”
Article 92 reads: “Subject to this section and to the other provisions of this constitution, power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices shall vest in the governor, acting in accordance with the advice of the Public Service Commission; but the governor, acting in his or her discretion, may act otherwise than in accordance with that advice, would prejudice Her Majesty’s service.”
(Paragraph) 32 – To my mind, giving Article 92(1) a purposive construction and construing it in the light of the entire Article 92 and in particular 92(2) and 92(3), “which provide for the governor to refer the advice back to the Public Service Commission (PSC) for reconsideration, the governor is obliged to accept the advice of the PSC unless he applies the proviso and so has no autonomous jurisdiction over public officers”.
There is no similar proviso in our Constitution and it is in my judgment correct to say that the Governor General has no autonomous jurisdiction over public or police officers under the Barbados Constitution.
Of course, if the advice of the Police Service Commission is flawed or tainted by the acceptance of the dictates of unauthorized persons, in such a way that it can be challenged successfully by way of judicial review, then the fact that the power is being exercised by the correct authority may not be enough to avoid the intervention of the courts, as has happened in several cases throughout the region.
• Cecil McCarthy is a Queen’s Counsel.