The Constitutional Role and Responsibility of Public Service Commissions & Police Service Commissions in the independent Commonwealth Caribbean: Much Room for Improvement by J. EMILE FERDINAND, Q.C., LL.B. (UWI), LL.M. (Cantab.) 5th March 2016

Table of Contents

The Constitutional Role and Responsibility of Public Service Commissions & Police Service Commissions in the independent Commonwealth Caribbean: Much Room for Improvement¹

J. EMILE FERDINAND, Q.C., LL.B. (UWI), LL.M. (Cantab.)

5th March 2016

(A presentation made via Skype to the OECS Bar’s continuing legal education seminar held in Montserrat on 5th March 2016.)

The Police Service Commission and the Public Service Commission (“PSCs”) in St. Kitts-Nevis, as in the wider Commonwealth Caribbean, have as their constitutional raison d’etre the protection of the Police Force and the Civil Service, respectively, from partisan political victimization, favouritism, patronage and manipulation (see the Thomas², Lake³ and Perch⁴ cases decided by the Privy Council). It is the PSCs, not the politicians, that are supposed to decide who gets hired and fired in the Police Force and the Civil Service.

It would therefore be completely improper for a new Government to call for the resignations of PSC members following a general election as this would constitute an attempt by such a Government to encroach upon and violate constitutional safeguards. It would be an even more egregious breach of constitutional principle for such a call to be yielded to by any PSC members! Any members of PSCs who succumb to such calls would be abdicating their constitutional responsibilities owed to the citizenry and the Law.

As is typical in Constitutions in the independent Commonwealth Caribbean, the St. Kitts-Nevis Constitution stipulates that:

“… the power to appoint persons to hold or act in offices in the Police Force (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Governor-General, acting in accordance with the recommendation of the Police Service Commission:

Provided that before the Commission makes any recommendation to the Governor-General with respect to the appointment of any person to hold the office of Chief of Police or Deputy Chief of Police the Commission shall consult with the Prime Minister and if the Prime Minister signifies his objection to the appointment of any person to the office the Commission shall not recommend the Governor- General to appoint that person.”⁵

Except where otherwise stated in the Constitution, the Police Service Commission “shall, in the exercise of its functions under [the] Constitution, not be subject to the direction or control of any other person or authority.”⁶

Similar Constitutional provisions apply to the Public Service Commission to those quoted above re the Police Service Commission. The offices or posts in respect of which the PM has a veto power are not identical in all Caribbean countries. [eg. in Jamaica the post of Solicitor-General is not one that is so listed, but in the Trinidad & Tobago Constitution it is so listed].

Various Commonwealth Caribbean constitutional cases decided since political independence (Thomas⁷ , de Freitas⁸ , etc.) have clearly established that the British colonial concept of “dismissal at the pleasure of the Crown” is incompatible with the post-independence constitutional order. As Mr. Justice Odel Adams (of blessed memory) colourfully articulated in the Dominican High Court case Emanuel v Attorney General of Dominica,⁹:

“ … the dying concept of dismissal at pleasure … however much it may have thrived and clings to life in the wintry climes of the United Kingdom, must in the unyielding sun of the Eastern Caribbean receive little sustenance.”

In the Eastern Caribbean the case law from Public Service Commission v Davis & Others¹⁰ (a decision of the Court of Appeal of the Eastern Caribbean States dated 19th March 1984) to Horace Fraser v Judicial & Legal Services Commission and The Attorney General of St. Lucia (Privy Council Appeal No. 116 of 2006 dated 6th May 2008) illustrates the challenges of bringing to practical realization the constitutional role of the PSCs in the region. The litigation has tended to focus on the need for PSCs to ensure that the principles of Natural Justice are observed, especially the right to be heard, and that it is also important for PSCs to follow the procedures prescribed in their own governing rules and regulations.

Appointments to the PSCs

The general public seems unaware of the important role and responsibility vested in the Service Commissions by the Constitution. This is partly caused by Government not publicizing the constitutional function of the Service Commissions and making appointments to them quietly, buried in the Official Gazette. Additionally (certainly in St. Kitts & Nevis), the public is never told what qualifies the appointee(s) to serve on these Service Commissions.

Moreover, contrary to the Constitutional ideals, our political culture in St Kitts and Nevis (and no doubt to some extent in other Caribbean islands) appears inclined to regard political control of appointments to the Police Service and to the Civil Service as a prize of victory at the polls. This is not in keeping with the principles in our Constitution by which these “autonomous”¹¹ Service Commissions are designed to yield a professional Police Force and a non-partisan Civil Service.

As it was expressed by the Privy Council in the Perch judgment:

“… [the service] commissions are so composed, structured and regulated as to ensure that they are independent and immune from political pressure, the object being to ensure that civil servants, police officers and teachers are similarly independent and immune….”¹²

Disregard of constitutional principles manifests itself too often in the appointment to PSCs, and thence into the public service itself by the PSCs, of partisan political operatives. Whether appointed by the Governor General in his own deliberate judgment or upon the recommendation of the Prime Minister, persons appointed to the Service Commissions should be individuals in whom there is a high degree of national consensus that they will be capable individuals who are motivated by a desire to see the Police Service and the Civil Service properly staffed and operating efficiently and impartially for the public good. If appointees to Service Commissions only have support from the governing political party or parties, and no support from the Opposition or from NGO’s, national consensus in their capabilities will likely be lacking.

Here in St Kitts & Nevis there has been under the previous Labour/NRP Government, and continues to be under the new Team Unity Coalition, a constitutionally improper practice of the Prime Minister being asked to indicate whether he approves of particular individuals being promoted to Police ranks below that of Deputy Chief of Police. This practice (carried out by both PM Douglas and PM Harris) is wrong and ought to stop. It politicizes, rather than professionalizes, the Police Force. The Constitution only permits the Prime Minister to veto appointments to the posts of Chief of Police and Deputy Chief (now referred to as Commissioner of Police and Deputy Commissioner of Police). If it was permissible for the Prime Minister to have veto powers re any lower ranks, the Constitution would have so stated.

At this time when the need to reduce crime must be a national priority in our country, practices which promote professionalism in the Police Force should be followed, and those which tend to politicization of the Force ought to cease. To this end, PM Harris ought to break with the practice of his predecessor, which he has so far carried on, of involving himself in approving or disapproving of intended promotions within the Police Force below the rank of Deputy Commissioner.

Other Possible Reforms and Improvements

In terms of other concrete suggestions for improving governance in this area, there ought to be meaningful prior consultation by Government with the parliamentary Opposition and civil society (ie. Public Service Associations and non-governmental organizations) before appointments to PSCs are made. When made, such appointments should be loudly and publicly announced, with a declaration of their constitutional importance, rather than being left to be discovered merely by those few persons who read the Official Gazette. We the public should be told of the qualities or qualifications that justify each appointee to any PSC. This will help to take us along the path which leads away from appointments to the PSCs being viewed as partisan political plums enabling the Government of the day to operate the ‘spoils’ system upon a change of Government ….” Appointments where partisan political considerations are paramount often result in appointments of square pegs in round holes.

I wish to make it clear that my views expressed in this presentation are not in any way meant to criticize the choice of, or the individuals themselves, recently appointed to the Police High Command. I have known Commissioner Queeley, Deputy Commissioner Brandy and some of the other newly-appointed officers for many years, and I have every confidence that they will give their all and seek to make a difference. But it is not just up to the new Police High Command to reduce crime. Their efforts will only succeed if they receive support from the lower ranks and the general public, and no interference by politicians in staffing and operational matters.

Secretariat Support

If the Service Commissions’ operations are not given appropriate budgetary and secretariat support they will be doomed to fail to live up to their constitutional promise. PSCs cannot be expected to operate without access to sound legal advice, skilled and experienced human resource recommendations and proper secretarial services. Where these essential supports are lacking, no one should be surprised if PSC’s operate as mere rubber stamps doing the bidding of the Government of the day. However, to operate in such a manner is to fail in their Constitutional responsibility.

Specialized Commissions

The idea that a single Public Service Commission can be “all things to all persons” is completely unrealistic in modern societies with increasing degrees of specialization. To my mind, at the very least, there needs to be separate Public Service Commissions with distinct responsibilities for:

(a) the Judicial and Legal Services;

(b) the traditional Civil Service;

(d) the Teaching Service;

(e) the Health Services; and

(f) perhaps Statutory Corporations.

St Kitts and Nevis currently lacks the last three Commissions listed above.

Statutory Corporations

Large areas of governmental activity have been carved out of the traditional Civil Service and entrusted to statutory corporations and in some cases commercial entities, thereby circumventing the constitutional safeguards. In the Perch decision the Privy Council has given some judicial approval to this development, while hinting that there are some possible constitutional limits. The establishment of a “Statutory Authorities Service Commission” in the OECS states is perhaps worthy of consideration in response to this development. Trinidad & Tobago has enacted some legislation in this field. I would be interested to hear of experiences from other jurisdictions and possibilities in this regard.

Regionalism

We in the Caribbean have to stop trying to re-invent the wheel. There should be a sustained effort at having more uniform rules, regulations and procedures governing the Public Service itself and also the operations of the PSCs throughout the Commonwealth Caribbean. The existing scenario whereby some jurisdictions still have “on the books” colonial-era General Orders is absurd. Some of these rules have been judicially declared as being incompatible with constitutionally-guaranteed fundamental rights and freedoms, and are often times not even physically accessible by the officers whose conduct they are to guide and govern. This is contrary to the Rule of Law and any idea of modern governance. The Privy Council’s decision in the DeFreitas case makes it clear that the many restrictive rules governing public servants must be sufficiently clear and detailed to satisfy the principle of legal certainty. They must “be formulated with sufficient precision to enable the citizen to regulate his conduct ….” “[A] degree of precision is required so that the individual will be able to know with some confidence where the boundaries of legality may lie ….”

Reforms are Needed Urgently

Only increased public awareness and a sustained Caribbean-wide regional approach, holds any hope for the engendering and development of “best practices” appropriate to both our historical and current realities. National litigation is a costly and time-consuming path to progress in this field which cries out for governance improvement. There is public cynicism at the protection afforded by PSCs and yet politicians (and even senior public servants) also have been known to express frustration at the lack of responsiveness in the PSC mechanism. One former Barbadian Prime Minister was said to have described the Civil Service as “an army of occupation” that elected politicians meet upon assuming office! As is often the case with constitutional mechanisms which provide checks and balances, they cannot be expected to please all of the people all of the time. Still, if the PSCs did not already exist we would have to invent them, or some similar mechanism to attain their constitutional objectives. PSCs need to urgently improve (perhaps “start” would be a more appropriate expression!) their public relations and engage in more public education about their important constitutional role, responsibilities and functioning.

In the St Kitts-Nevis context, PM Harris should be the lead change agent in this area of public administration and publicly abandon the unconstitutional bad habit of his predecessor who ought never to have been involved in approving Police appointments other than the Commissioner and Deputy Commissioner. PM Harris should also ensure that the Team Unity Government improves how PSC members are selected and function. If the St Kitts and Nevis Government continues to simply operate as before, it should not be surprised if the crime crisis also continues.

The OECS Bar Executive, and we, the members, can play an important role in:

(a) increasing public awareness of the role of the PSCs;

(b) developing “best practices” by sharing experiences; and

(c) perhaps starting a dialogue in which we can begin to focus on the commonality as well as the diversity of Commonwealth Caribbean constitutional arrangements concerning public officers, and where appropriate seek to influence positive constitutional changes. I am not unmindful that any such constitutional reforms involve long-term goals, but the longest of journeys begins with but a first step.

There are insufficient events focusing on this aspect of governance, the ineffectiveness of which is known to be caused by the prevailing political culture. There needs to be a plethora of events which hammer away at the political culture until it becomes embedded in the psyche of our people that the culture must change if we want our countries and communities to have an efficient Civil Service and a professional Police Force. Our deeply divisive partisan political culture plays on the most base feelings of the majority of our citizens, ie. tribal feelings of superiority over the other tribe. I do hope that the OECS Bar and its members can influence steps in the right direction by adding to my modest recommendations made in this presentation.

The CCJ

Without holding up the Belizean constitutional arrangements as a general model, it is noteworthy that (to quote from page 263 of Sir Fred Phillips QC’s book, Commonwealth Caribbean Constitutional Law):

“The Government of Belize is the first administration in the Commonwealth Caribbean (apart from Guyana) to localize the regime for the removal of judges.”

The events in Trinidad & Tobago a few years ago where the Tribunal involved in the Chief Justice Sharma saga was comprised of retired Privy Counselor Lord Mustill but outnumbered by Sir Vincent Floissac Q.C. (retired OECS Chief Justice) and Dennis Morrison QC (then a Jamaican lawyer and part-time Belizean Court of Appeal Judge and now a Justice of Appeal on the Jamaican Court of Appeal) clearly show that we are much more capable of looking after our own affairs than we do at present. I have been encouraged and inspired by my three-year stint on the CCJ’s RJLSC that Service Commissions can execute their tasks properly. As a region, we in the Caribbean need to find the confidence to stop ham-stringing ourselves. We can do much more, and much better, for ourselves, and we should. Former Prime Minister Owen Arthur’s comments are completely correct: not only has the sky not fallen on Barbados since it replaced the Judicial Committee of the Privy Council with the CCJ, but the CCJ deserves our support as a regional Caribbean institution. As with the PSCs, it will require the Caribbean public’s continuous, vigilant and eternal scrutiny and comment on appointments to the CCJ and its decisions if it is to deliver on its constitutional promise. My firm personal view is that the CCJ should be constitutionally entrenched, but that we in the Caribbean should support the Court, securely entrenched, I have not the slightest doubt. The CCJ should also be the final tribunal in the Commonwealth Caribbean for the removal of judicial officers on disciplinary grounds.

Thank you for inviting me to share these thoughts with you, and for your patient ears. I now look forward to other OECS Bar members sharing their views here and elsewhere on this important topic that, rest assured, affects us all.

J. EMILE FERDINAND, Q.C., LL.B. (UWI), LL.M. (Cantab.)

5th March 2016

¹ A presentation made via Skype to the OECS Bar’s continuing legal education seminar in Montserrat on 5th March 2016.

² Thomas v Attorney General of Trinidad & Tobago (1981) 32 WIR 375

³ Attorney General of Antigua & Barbuda et al v Lake (1998) 53 WIR 145

⁴ Perch et al v Attorney General of Trinidad & Tobago (2003) 62 WIR 461

⁵ Section 85(1) of the St Kitts & Nevis Constitution

⁶ Section 84(6) of the St Kitts & Nevis Constitution

⁷ See footnote #2.

⁸ de Freitas v Permanent Secretary of the Ministry of Agriculture & Others, (1998) 53 WIR 131

⁹ Suit No. 194 of 1989

¹⁰ (1984) 33 WIR 112