Guyana: the public law/private law divide in employment law - clarity and penumbra

• Author: The Hon. Mr. Justice A.F.R. Bishop
• Position: Chief Justice of Guyana
• Pages: 484-516

GUYANA: THE PUBLIC LAW/PRIVATE LAW

DIVIDE IN EMPLOYMENT LAW -

CLARITY AND PENUMBRA

THE HON. MR. JUSTICE A.F.R. BISHOP*

Some 2000 years ago, Dionysus of Halicarnassus wrote in his

Antiquities

of Rome, a simple line:

"Time is the best interpreter of every doubtful law."

And it is therefore my objective to demonstrate that the prescience,

which characterises Dionysus's apothegm, may be applied to several

situations. These include examples within employment law which, at

one moment, appear to be classified as concerns of private law and, at

another, claim to be cognisable under

public

law.

Here,

public

law means that part of

law

that focuses on relationships

between individuals and the State and those between individuals that

are of direct concern to the State;

and private

law is restricted to those

aspects of relationships between individuals that are of no direct

concern to the State. The dichotomy affects rights and the divisions of

law within which they should lie; but this is "not soluble [always] by

some readily applicable mechanical formula".1 In fact, experience

accentuates "a confusion between private and public

rights".2

Cane says

that "the distinction between public law and private law is one (or a

subset) of

a

complex set of distinctions concerned with demarcating the

public and private spheres of life".3

Chief Justice of Guyana. The substance of this article was the subject-

matter of a lecture delivered by the author on October 20, 1994 at the

University of the West Indies, Cave Hill Campus, Barbados, at the

invitation of Dr. Albert K. Fiadjoe, Dean, Faculty of Law.

1 P. P. Craig, Administrative Law, (2nd edn.), London: Sweet & Maxwell,

1989,

p.15.

2 S.D. Hotop, Principles of Australian Administrative Law, (6th edn.).

Sydney: The Law Book Co., 1985, p.314.

3 Peter Cane, "Public Law and Private Law: A Study of the Analysis and

Use of a Legal Concept". In Eekelaar and Bell (eds.), Oxford Essays in

Jurisprudence, (3rd series), 1987.

Perhaps these difficulties of classification of matters that belong to the one or the other branch of law have their origin in the failure of

scholars

and

jurists to have authoritatively stated clear lines limiting the

categories of law that constitute the institution of law, and to

underscore that those difficulties have been inspired by diverse

historical philosophies and perspectives. The result of that early

omission has yielded acknowledged overlapping concepts, injustices

and anomalies, which legislation has not, or does not every time, or

even sometimes within reasonable time, correct, but, at times,

complicates.

Young offers the pertinent observation that law is frequently divided

into two grand divisions, public and private law, in consonance with

the Roman method of analysis, and that this classification is used on

the European Continent. Then, directing attention to the American

jurisdiction, he proposes that the terms "public" and "private" do not

easily distinguish between concrete types of American law and [that]

there is much to be gained in clarity by using the single term, law, and

thereafter [you] seek to distinguish the various categories of

law

which

are blended into the total legal system.4 He illustrates the problem

which besets the propounding of neat and enduring categories of law

by saying:

The distinction between public and private law is also difficult

to apply in the American sense. The legislatures can enact

so-called public law, but they can also modify so-called private

law. Governments may be controlled in part by so-called

public law, but they are also controlled by so-called private

law; they can make contracts, for instance, which are derived

from a traditional field of private law, but the idea implicit in

contract that promises should be kept, lies at the basis of treaty

relations between nations.5

In the English jurisdiction, the high expectations of simplication

which Order 53 engendered, in relation to judicial review, are not so

great today as they were at the inception in 1977. For example,

4 Roland Young, American Law and

Politics:

The

Creation

of Public Order,

New York: Harper & Row, 1967, p. 157.

5 Op. cit., p.158.

R v. Berkshire Health Authority ex p. Walsh6 was, contrary to the

views of some legal scholars, held by the Court of Appeal of England

as not raising the type of public law issues contemplated by Order 53.

Although the applicant was employed by a public body, that fact itself

was insufficient to attract public law remedies.

But straightforward as that explanation might have appeared, a more

fundamental rationale was required, if

the

decision was to enunciate a

guideline and satisfactory precedent of unquestioned juridical eminence.

Smith and Wood consider the question and say:

... in the older case law, the courts tended to look at the status

of the applicant. In

ex

p. Walsh, however, the court clearly

looked at the nature of his complaint - did it raise matters

categorisable as public law? It is true that Mr Walsh's contract

was made by reference to regulatory provisions and subject

(ultimately) to sanctioning by the Secretary of

State.

However,

he was not complaining that his contract had not been made in

accordance with the correct statutory procedures; his complaint

in essence was quite simply that, having been made, his

contract had been broken by the Health Authority by the

manner of

his

dismissal. Breach of contract, said the Court of

Appeal, remains a matter of Private law (even) when

employment is in the public sector with some measure of

public control.7

So far, I have attempted to show that even though legislative intent

can exert considerable influence on issues, as to whether they raise

justiciable questions within public law or private law, the common law

does appear at points responsive to challenge or indestructible while

intent on preserving its integrity.

And so, I examine four Guyanese cases in which the primary

facts were controlled by the history of legislative disposition,

6 [1984] IRLR. 278, C.A.

7 I.T. Smith & J.C. Wood, Industrial Law, (5th edn.), London:

Butterworths, 1993, p. 280. Compare and contrast O'Reilly v Mackman

[1983] 2 A.C. 237, Cocks v

Thanet

D.C. [1983] 2 A.C. 286, Wandsworth

B.C. v Winder [1984] 3 W.L.R. 1254.