Where a person is appointed pursuant to provisions of a constitution in the Commonwealth Caribbean, the exercise of discipline in any form over the person has to be carefully considered.
Even experienced judicial officers get the process wrong.
A case in point is the recent Privy Council decision on appeal from St Lucia in Horace Fraser vs Judicial and Legal Services Commission (2008) (hereinafter called Horace Fraser) one of many decisions that have reached regional Courts of Appeal or the Privy Council in recent times concerning decisions relating to people that are governed by constitutional provisions relating either to the Judicial and Legal Services Commissions or the Public Service Commission.
The material facts in Horace Fraser are taken from the judgment of the Privy Council:
“1. Under the Constitution of St Lucia “[t]he power to appoint persons to hold or act in offices” which include the office of (inter alia) magistrate is vested in the Judicial and Legal Services Commission (s.91(2)), and “the power to exercise disciplinary control over persons holding or acting in [such] offices . . . and the power to remove such persons from office” is likewise vested in the commission (S91(3)).
“It appears in practice, once the Commission decides that a person should be so appointed, a written agreement to give effect to the appointment and deal with matters such as salary is made between the person in question and the Ministry of Public Service.
2. Pursuant to decisions by the commission, the appellant served as a magistrate in St Lucia under successive annual contracts, the first commencing on 6th September, 2000, and the last on 6th September, 2003. By letter from the Permanent Secretary of the Ministry of Public Service dated 15th January, 2004, followed by a second letter stated to supersede it dated 16th January, 2004, the appellant was dismissed from his office with effect from 19th January, 2004. In respect of that dismissal, the appellant sought constitutional relief against the commission and the Attorney General representing the government of St Lucia.
3. On 10th June, 2005, Shanks J. Ag. gave judgment in his favour, declaring that both the commission and the government had contravened s.91 and ordering the commission (only) to pay the appellant (a) his net loss of salary and other benefits (including gratuity) for the period 19th January to 5th September, 2004 and (b) $10 000 for distress and inconvenience. On 28th November, 2005, the Eastern Caribbean Court of Appeal allowed the commission’s and government’s appeals in respect of the judge’s finding that they had been in breach of s.91 of the Constitution. The court held that the only breach was a breach of the appellant’s contract by the government. The majority (Barrow J.A. and Gordon J.A.) held that this breach consisted in a failure to pay one month’s salary in lieu of notice.”
The appellant Horace Fraser appealed to the Privy Council.
The appellant’s contract provided that it could be terminated on “three months’ notice in writing or on paying him one month’s salary”.
The judgment of the Privy Council continues:
6. “The background to the appellant’s dismissal was as follows. At a meeting on 10th September, 2003, at which the appellant was present, the Commission decided to appoint a retired High Court judge to investigate what the Commission’s chairman, Sir Dennis Byron, described in the letter dated 14th October to the appellant confirming the decision as “the unsubstantiated reports I have received of corruption in drug cases involving you”.
The letter recorded that the appellant had welcomed the investigation. Retired Justice Odel Adams was appointed and produced a report dated 3rd November and submitted to Sir Dennis Byron on 11th November, 2003. Justice Adams considered the papers in three drugs cases. In two, he thought that the appellant had, in acquitting the defendants at the close of the prosecution’s case, reached a wrong decision, but not so wrong as to give rise to any adverse inference about his integrity. In the third, he found no acceptable excuse for a grant of bail involving the revocation of an order by Shanks J. that the defendant surrender his passport.
On 20th November, 2003, Justice Adams wrote to Sir Dennis Byron that in the light of his report he believed it to be justifiable to lay against the appellant a charge of gross incompetence (which he formulated in detail), but concluded the letter with this sentence:
“Having reflected on the matter however, I believe that the commission may wish to consider that Magistrate Fraser’s service be terminated pursuant to the notice provisions in his contract.”
The Ministry of the Public Service “wrote to the appellant a letter dated 15th January, 2004. It said that it was in receipt of the commission’s report, that “having read and considered their report, we have found the said charges substantiated” and that it had therefore “no alternative” but to terminate his contract under clause 5 of the contract with effect from 19th January, 2004, and would be paying one month’s salary in lieu of notice under clause 6.
On the next day, by letter expressed to supersede its first letter, the Ministry said that the commission had advised the Ministry that, due to improper conduct on the appellant’s part, his contract should be terminated with immediate effect from 19th January, 2004. No mention was made in this second letter of payment of a month’s or any salary, and none was in the event paid.”
The Privy Council decided essentially that even if the contract under which they were employed contained provisions which purport to permit termination at will during the period of their employment members of the lower judiciary enjoyed during that period security of tenure to the extent that they could only be removed for due cause by decision of the Judicial and Legal Services Commission.
• Cecil McCarthy is a Queen’s Counsel.
