Judicial protection of caribbean public officers against arbitrary administrators

• Author: Francis Alexis
• Position: BA. LL.B. LL.M. (UWI), Ph.D (Cantab), LEC (HWLS); Banister, MP - Grenada; formerly Senior Lecturer in Law (UWI); formerly Attorney-General of Grenada
• Pages: 139-156

JUDICIAL PROTECTION OF CARIBBEAN

PUBLIC OFFICERS AGAINST

ARBITRARY ADMINISTRATORS

FRANCIS ALEXIS*

Common Thread

Not only did post-independence Commonwealth Caribbean services

commissions, including the Public Service Commission (PSC),

superintending public officers, claim

the

right to dismiss public officers

at pleasure, those commissions equally asserted the power to put public

officers on leave in the exigencies of the service, indefinitely and

unqualifiedly, that

is,

without proceeding against officers disciplinary,

or for incompetence, or for other unsuitability of office, thereby denying

them retiring benefits.

It is submitted that both dismissal at pleasure and unqualified

indefinite leave

in the

exigencies of

the

service are instances of arbitrary

power. With the former abolished

by the Privy

Council in 1981 as being

repugnant

to the

typical Westminster model independence Constitutions

of the Commonwealth Caribbean,1 the fate of the latter hung in the

balance. Similarly, with dismissal at pleasure gone, interest focussed on

whether

the courts

might

no

longer be prepared to tolerate arbitrary use

of the machinery of probationary employment in the public service.

The courts are increasingly showing readiness to make both

unqualified indefinite leave and probation reflect the reform spirit

which abolished dismissal at pleasure.

BA. LL.B. LL.M. (UWI), Ph.D (Cantab), LEC (HWLS); Banister, MP - Grenada;

formerly Senior Lecturer in Law(UWI); formerly Attorney-General of Grenada.

1 Thomas v. Attorney-General (1981) 32

W.I.R.

375 (PC) [T&T].

Memorable Memorandum

Arbitrary unqualified indefinite leave in the exigencies of the service

was weighed in the scales of justice in the regional Eastern Caribbean

Court of Appeal2 on 26 November 1997 at the instance of Richard

Duncan.3

Richard Duncan joined the public service of Grenada as a non-

graduate secondary school teacher in 1981. Securing University

degrees,4 earning merit and gaining experience on the

job,

Duncan, by

June,

1994, attained the office of Deputy Permanent Secretary, Finance,

(Deputy Director-General, Planning and Development, Ministry of

Finance).5

As a career public officer, Duncan served with equal loyalty and

professionalism under every shade of government This included service

under the leftist revolutionary government, the gubematerially hand-

picked interim government which functioned under the US-led multi-

national military intervention following the collapse of the

revolutionary government in October, 1983, and four Prime Ministers

of elected governments in the post-revolutionary restored parliamentary

democracy. Duncan was never the subject of disciplinary proceedings

before the PSC, nor ever the subject of any complaint about his

performance in or other suitability for any office he held in the public

service,6 He seemed settled for a brilliant long career in the public

service.

But the general elections of 20 June, 1995 ushered in a new Minister

of Finance, the new Prime Minister,7 who promptly brought with him

2 Serving the independent countries of Antigua and Barbuda, Dominica, Grenada, St.

2 Christopher (Kitts) -Nevis, St Lucia, St. Vincent; and the colonies of Anguilla,

British Virgin Islands (Tortola), Montserrat

3 Duncan v.

Attorney-General,.

Civil Appeal Np.

13

of 1997, Grenada (8 December

1997).

4

BSc.

(Econ) (1987) (UWI); Mam (Pub Admin) (1994)

(Carleton).

He later in 1997

became a Certified General Accountant (Canada).

5 He was designated Deputy Director-General, Planning and Development, Finance.

Places were swapped,

so

that Duncan functioned as Deputy LHrector-General, Budget

and Fiscal Policy. Also, in 1992 and 1004 he served as Account-General.

6 See note 10 below.

7 Dr. The Hon. Keith Mitchell.