EVERYDAY LAW: Removal/dismissal of legal officers
Last week, I started to discuss the case of Horace Fraser v Judicial and Legal Services Commission, but time did not permit me to capture the full import of the decision.
Today, I conclude my discussion of that important case.
Under the constitution of St Lucia “power to appoint persons to hold or act in offices”, including the office of magistrate, is vested in the Judicial and Legal Services Commission (S91 (2)) and the power to exercise disciplinary control over people holding or acting in such offices and the power to remove such them is likewise vested in the Commission.
Pursuant to the decisions of the Commission, Horace Fraser served as a magistrate under successive annual contracts, the last of which commenced on September 6, 2003.
Fraser was dismissed from the last contract in the following circumstances.
At a meeting of the Commission, it was decided to appoint a retired High Court judge to investigate allegations of misconduct in the form of corruption relating to his handling of certain drug charges.
In the opinion of the retired judge, one of the drug cases resulted in a questionable decision by the magistrate to grant bail to an accused which, in his opinion, justified a charge of gross incompetence. However, he suggested that the Commission consider instead that Fraser’s services be terminated pursuant to notice provisions in his contract.
By letter of the Permanent Secretary of the Ministry of Public Service, the appellant, Fraser, was dismissed from his office with effect from January 2004. Fraser sought constitutional relief against the Commission and the Attorney General of St Lucia.
In arriving at its decision, the Privy Council had to consider two main issues.
1. Was a fixed term contract constitutionally permissible with respect to the office of magistrate? The Court held that there was nothing in the constitution inconsistent with the agreement that provided for a fixed contractual term of office.
At paragraph 16 of the judgment, their Lordships observed:
“The expiry in the ordinary course of a fixed term cannot be described as a “removal”. But provisions whereby the ministry engaging a member of the lower judiciary can bring a term of office to an end prior to its natural expiry fell into a different category”.
2. Was the appellant entitled to constitutional protection against removal from office despite the notice provisions in his contract of employment?
The Privy Council held that if the terms of the contract were inconsistent with the constitutional protection (S91, in the case of St Lucia) then the latter must prevail.
The court referred to the judgment in one of its earlier decisions: Thomas v Attorney General of Trinidad and Tobago, and made the following observation at paragraph 15 of its decision:
. . . in Thomas v Attorney General of Trinidad and Tobago Lord Diplock giving the Board’s judgment emphasized the constitutional importance of the autonomous commission established under Westminster-style constitutions with powers of discipline and removal relating to specific officers . . .
the Board said of a provision providing security of tenure for police officers that “To ‘remove’ from office in the police force in the context . . . 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”.
This points to a broad interpretation of such provisions with which the board fully concurs.
The Commission’s code for disciplinary proceedings, among other things, required that after the report from the retired judge it should decide whether the appellant ought to be charged with misconduct. If it did so decide, then it has to inform the appellant in writing of the act of misconduct with which he was charged and then either hear the charge itself or refer it to a tribunal of two or more people to do so.
The Privy Council held that the provisions of the code had to be followed and the Commission could not simply act on the report of the retired judge.
Put simply, the court held that removal, in whatever form, was in the light of section 91 of the St Lucia constitution only permissible if effected pursuant to a decision by the Commission at the time of removal.
Furthermore, such a decision could only be valid if the Commission found in accordance with the prescribed procedure that reasonable cause existed for the officer’s removal.
Of course, decisions of the Privy Council are not binding on the courts in Barbados.
However, it is not immediately obvious to me how such a decision and the rationale behind it could be successfully challenged in similar circumstances in any Caribbean jurisdiction with similar constitutional provisions!
• Cecil McCarthy is a Queen’s Counsel.