Public Law

Roles and Functions of the service commission

Constitutional Basis of the Services Commissions:

Judicial Service Commission

The Jamaican Constitution 1962, speaks to the establishment of the Judicial Service
Commission

111. (1) There shall be a Judicial Service Commission for Jamaica.

(2) The members of the Judicial Service Commission shall be

a. the Chief Justice who shall be Chairman;

b. the President of the Court of Appeal;

c. the Chairman of the Public Service Commission; and

d. three other members (hereinafter called "the appointed members") appointed

in accordance with the provisions of subsection (3) of this section.

(3) The appointed members shall be appointed by the Governor-General, by instrument

under the Broad Seal, acting on the recommendation of the Prime Minister after
consultation with the Leader of the Opposition

a. one from among persons who hold or have held office as a judge of a court having
unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or
a court having jurisdiction in appeals from any such court;

b. two from a list of six persons, none of whom is an attorney-at-law in active practice,
submitted by the General Legal Council:
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 The Public Service commission

124. (1) There shall be a Public Service Commission for Jamaica consisting of a Chairman and
such number of other members, being not less than three nor more than five, as the
Governor General, acting on the recommendation of the Prime Minister after
consultation with the Leader of the Opposition, may from time to time decide.

(3) No person shall be qualified to be appointed as a member of the Public Service

Commission if he holds or is acting in any public office other than the office of member
of the Judicial Service Commission or member of the Police Service Commission.

(5) The office of a member of the Public Service Commission shall become vacant- a. at
the expiration of five years from the date of his appointment or such earlier time as may
be specified in the instrument by which he was appointed.

(7) The members of the Public Service Commission shall receive such salaries and
allowances as may from time to time be prescribed by or under any law or by a
resolution of the House of Representatives: Provided that a. no such resolution may
reduce any salary or allowance for the time being prescribed by or under a law; and b.
the salary of a member of the Public Service Commission shall not be reduced during his
continuance in office

Police Service commission

129. (1) There shall be a Police Service Commission for Jamaica consisting of a Chairman and
such number of other members, being not less than two nor more than four, as the
Governor General, acting on the recommendation of the Prime Minister after
consultation with the Leader of the Opposition, may from time to time decide

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 (3) No person shall be qualified to be appointed as a member of the Police Service
Commission if he holds or is acting in any public office other than the office of member
of the Judicial Service Commission or member of the Public Service Commission.

(4) A member of the Police Service Commission shall not, within a period of three years
commencing with the date on which he last held or acted in that office, be eligible for
appointment to any office power to make appointments to which is vested by this
Constitution in the Governor-General acting on the advice of the Police Service
Commission.

(5) The office of a member of the Police Service Commission shall become vacant a. at
the expiration of five years from the date of his appointment or such earlier time as may
be specified in the instrument by which he was appointed;

THE PUBLIC SERVICE

THE BRITISH INHERITANCE
The British experience provides us with an important background to this chapter. In England,
the Civil Service is conceived of as a permanent core of nonpolitical officers, providing loyal
service to the monarch and espousing no political views publicly. The quid pro quo for this total
loyalty is their insulation from political harassment and executive political control.
Beyond the assertion that these officials are 'servants of the Crown', regulated by several
Acts of Parliament/ the royal prerogative, Orders in Council and numerous regulations and
instructions issued from time to time, there is grave difficulty in clarifying fully the legal status of
their employment situation. 1 What is clear is that, at common law, the civil servant held office
at the pleasure of the Crown. And it has been argued that this rule is based on 'constitutional
law and public policy'. While some measure of protection is now provided by the
Employment Protection Act 1978 against unfair dismissal, it is still a moot point whether there is
a contractual relationship between the civil servant and the Crown or not. 2

1
This problem will surface when we discuss the Barbadian case of King v AG (1992) 44 WIR 52
3
THE ESTABLISHMENT OF THE PUBLIC SERVICE IN WEST
INDIAN CONSTITUTIONS

The West Indian constitutions preserve the concept of a neutral non-political public service and
jettison the title 'Civil Service' in favour of the 'Public Service'. And the constitutional
mechanism for sustaining the non-political Public Service is the establishment of various Service
Commissions vested with the power of appointment, discipline and dismissal of public officers
in a constitutionally protected environment. This concept of a neutral, nonpolitical public
service was judicially recognised by the Privy Council in Thomas v AG.3
Except for Trinidad and Tobago and St Vincent, the appointment of the members of the
Service Commission rests ultimately on the decision of the Prime Minister. The members of the
Commission, however, do enjoy some form of tenure as well as protected conditions of service.
In Jamaica and Trinidad and Tobago, the members may be removed for cause without
necessarily invoking a tribunal procedure. In all other territories, removal follows upon a
tribunal procedure.
The requirement in all the constitutions for consultation with the Leader of the
Opposition gives credence to the constitutional intendment that appointments to the
membership of these Commissions should enjoy broad consensus and should be seen as bi-
partisan.
Other constitutional devices put in place to buttress the independence of the service
Commissions4 are the exclusion of Members of Parliament from membership, and the
protection of their tenure. A majority of the constitutions provide that a member of a Service
Commission may only be removed for cause, which implies inability to discharge the functions
of office arising from infirmity of body or mind or for misbehaviour. Ultimate removal can only

2
R v civil Service Appeal Board ex p Cunningham [1991] 4 All ER 310; R v Civil Service Appeal Board exp Bruce
119881 3 All ER 686; and the GCHQ case 119841 3 All ER 935 all seem to point against the existence of a contract
between the civil servant and the Crown.
3
[1982] AC 113. The dictum was made with reference to Trinidad and Tobago, but is understood to
apply to all the Caribbean territories that recognise the Privy Council as its final Court of Appeal
4
The Commissions established are the Public Service Commission, the Police Service Commission, and the Judicial
and Legal Service Commission.
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be carried out after an impartial tribunal adjudication, by persons trained in the law,
recommending removal.5
The constitutions reinforce this protection of the Service Commissions by providing a
quarantine period during which retiring members of the Commission may not hold public office.
Thomas states the rationale behind the provision as being one intended to avoid any risk of
influence in favour of the executive by consideration of the official's own advancement in his
career.
Other protected Public Service posts which require a tribunal hearing before dismissal
are those of the Director of Public Prosecutions and the Auditor General (referred to in some
jurisdictions as the Director of Audit). These officers may only be removed for inability to
perform the functions of their office or for misbehaviour. The tribunal to investigate these
causes is appointed by the Head of State on the advice of the Judicial and Legal Service
Commission and is chosen from persons who hold or have held or are eligible to hold high
judicial office.6
The protected environment of the membership of the Service Commissions may be contrasted
with those appointments in which political influence is readily conceded. Examples are in the
appointment of ambassadors and the senior echelons of the Public Service.

THE FUNCTIONS OF THE PUBLIC SERVICE COMMISSIONS

The constitutions vest the Public Service Commissions with the power to appoint, discipline and
remove public officers. Does the power to discipline imply the power to transfer? In the
Belizean Constitution, for example, such unclarity has been eliminated by providing clearly that
the power of transfer vests in the Public Service Commission. Section 123(1) puts the issue
beyond doubt by providing that: any reference in this Constitution to power to make
5
Jamaican Constitution s 111(4) (d).
6
Jamaica, ss 96 (4)-(8), 121 (4)-(8)
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appointments to any public office shall be construed as including a reference to power to make
appointments on promotion and transfer to that office and the power to appoint a person to act
in that office during any period during which it is vacant or the holder thereof is unable to
perform the functions of that office.7
Public officers who are aggrieved by a decision of the Commission have a constitutional
right of appeal to an appellate tribunal, variously called a Public Service Board of Appeal or the
local Privy Council.8

A FAREWELL TO DISMISSAL AT PLEASURE?

Caribbean Public Service law received a most welcome jolt in the case of Thomas v AG. That
case established beyond a doubt that the common law doctrine of dismissal at pleasure of
Crown servants was no longer good law in the light of the Constitution of Trinidad and Tobago
and, by necessary implication, of the independent Commonwealth Caribbean States. 9 That
result was achieved by a most ingenious piece of judicial innovation. Dr Francis Alexis has put it
graphically that Thomas 'destroyed the dismissal at pleasure doctrine with a two-edged sword. 10
It is instructive to explore in a little more detail the reasoning behind the conclusion
reached in Thomas. First, the Privy Council relied heavily on the view that the chapter in the
Trinidadian Constitution dealing with the Public Service existed principally to insulate members
of the Public Service from the political influence exercised directly upon them by the
government of the day. In order to achieve that purpose the Service Commission was vested
with powers free from political influence and direction. The Privy Council concluded, therefore,
that the power to remove a public servant had to be one to remove for cause. The second plank
of the decision was the invocation of the equality of treatment clause in the Constitution. The
court reasoned that to dismiss public servants at whim would defeat the equality of treatment
clause. The third basis for the decision in Thomas was that dismissal at pleasure was a common

7
Smith v AG, Suit No 369 of 1982, H Ct Belize
8
In Barbados and Jamaica, the Board of Appeal is called the local Privy Council; to be distinguished from the
Judicial Committee of the Privy Council in England.
9
See Fiadjoe, 1991c
10
Alexis, F et al (eds), 1982, p 40
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law doctrine that arose out of the relationship with the Crown. The transfer of the power to the
Service Commissions to employ and dismiss public servants did not alter the position of the
Crown as employer and so did not carry with the transfer the right to dismiss at pleasure.
While welcoming the conclusion reached in Thomas, two residual questions need to be
addressed. Certain categories of employees are excluded from the category of public officers.
These include Members of Parliament, members of Statutory Boards, the personal staff of the
Governor General and members of the Public Service Commission. The Thomas principle has
been invoked to protect many a public officer in a number of situations.

THE NATURE OF THE CONTRACT OF EMPLOYMENT

The case of King v AG11 nearly provided a golden opportunity to have judicial pronouncements
on the true nature of the contract which a public officer has with the Crown, but the
opportunity offered was not taken up by the court. This is understandable, for in other
Commonwealth jurisdictions where the issue has been addressed, various discordant views
have been expressed.
Some authorities have likened the status of the public officer to contract, while several
others have doubted the contractual theory. Others, too, have argued that the contractual
theory was valid, but only if coupled with an implied term to accommodate the right in the
Crown to terminate that contract at pleasure. 12 Be that as it may, Thomas v AG seems to have
settled the matter for Trinidad and Tobago and, by necessary extension, for the rest of the
Commonwealth Caribbean, in favour Of the contract theory. In Thomas, Lord Diplock addressed
the nature of the public officer's contract with the Crown when he said obiter:
their Lordships would point out the constitutional doctrine of dismissability
of Crown servants at pleasure is, as a matter of legal theory, based upon
an implied term in their contracts of employment ... When the Crown
summarily dismisses a Crown servant without needing to show cause it
11
(1992) 44 WIR 52, H ct Barbados.
12
Dunn v R 118961 1 AB 116, Power v King (1929) 48 NZLR 267; Carey v The Commonwealth (1921) 30
CLR 132.

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 does so in the exercise of a right conferred upon it as employer under the
contract of employment which it has entered into with the servant'

Reference

Fiadjoe, A. (2008). Commonwealth Caribbean Public Law (3 ed.). New York, USA:

Routledge-Cavendish Publishing.