In the Trinidadian case Endell Thomas vs AG (1981), Lord Diplock explained the purpose of the commissions established by the Trinidad and Tobago constitution in the following terms:
“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 public service in Trinidad and Tobago from political influence exercised directly upon them by the government of the day.
“The means adopted for doing this was to vest in autonomous 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 the power to remove and exercise disciplinary control over members of the 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 person holding public office (limited in the case of the Public Service Commission to an officer of the police force), but the right to delegate, although 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 its behalf and not on behalf of the Crown or any other person or authority.”
In Thomas vs AG, the Privy Council decided that the power to remove a police officer meant removal for cause.
In that case the court also considered the concept of removal in the context of a provision relating to security of tenure of police officers and commented:
“To remove from office in the police force . . . embraces every means by which a police officer’s contract of employment (not being a contract for a specific period) is terminated against his own free will, by whatever euphemism the termination may be described, as, for example, being required to accept early retirement.”
In the Belizean case of Carl Smith Et Al vs The Attorney General (1985), where four teachers at the Belize Teachers’ College who were all public officers were sent, under the hand of the acting chief education officer, letters which indicated that they would be posted or seconded to the Belize Junior Secondary School, Chief Justice Moe considered similar provisions in the Belizean constitution and made the following observations where the power to transfer was in issue:
“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. In the Caribbean, see Chapter VIII Bahamas constitution; Chapter VIII Barbados constitution; Chapter IX Jamaica constitution; Chapter VIII constitution of Trinidad and Tobago. 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 just adumbrated 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. If it were otherwise, a person or authority with concurrent power could thwart the exercise by the commission of its functions. You therefore cannot have persons taking actions which in effect amount to doing what the constitution says the Public Services Commission is to do.
“The Public Service Commission then is the authority with the power to transfer the persons concerned. It is to be noted also that by virtue of section 106(5), the commission may delegate any one of its powers. It is accepted 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 Thomas vs AG and Carl Smith vs AG and other similar cases have demonstrated is that where matters of the appointment, discipline or transfer of public officers are concerned, it is the relevant service commission that is invested with exclusive authority.
• Cecil McCarthy is a Queen’s Counsel.
