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EVERYDAY LAW: The issue of public officers

Cecil McCarthy

EVERYDAY LAW: The issue of public officers

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Over the past few weeks, I have been considering cases which in the Barbadian context are relevant mainly to Sections 94(1) and Sections 117(3) of our Constitution.
Section 94 states:
(1) Subject to the provisions of this Constitution, power to make appointments to public officers and to remove and to 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 Public Service Commission.
Section 117(3) Chapter X Miscellaneous and Interpretation Act states:
Any reference in this Constitution to power to make appointment to any office shall be construed as including a reference to power to make appointments on promotion or transfer to that office to appoint a person to act in or perform the functions of that office during any period during which it is vacant or during which the holder thereof is unable (whether by reason of absence or infirmity of body or mind or any other cause) to perform those functions.
The cases demonstrate that in taking action with respect to a public officer one must be careful to consider the following:
1. What are the terms of his appointment?
2. Who has power to appoint or discipline?
3. If the intention is to punish or remove from office what procedure must be followed?
4. If the issue is transfer, who has power to transfer?
I end this current series on issues relating to public law by again referring to the Belizean case of Smith et al v Attorney General (2003), where the plaintiffs had received notification from the Acting Chief Education Officer that they were being “posted” elsewhere from their appointed positions.
Moe C. J., no doubt following the reasoning in the Privy Council decision in Thomas v Attorney General (1982), emphasized that the constitutional provisions governing the public service “seek to isolate members of the public service from undue influence and unwarranted interference”.
Moe C. J. also observed that the power vested in the Public Service Commission cannot be exercised by any other person or authority.
The Chief Justice said:
“. . . (T)here cannot be two authorities with concurrent power or jurisdiction to make appointments, or promotions or transfer.
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.
That this must be the position is inherent in a judgment of Lord Denning delivered as far back as 1952 in the Privy Council in Kanda v. Government of the Federation of Malaya 1962 A.C. 322.
“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.”
• Cecil McCarthy is a Queen’s Counsel.