The Official Executive - 1

The leading roles in the administration of policies, programmes and proposals set by the Political Executive are played by the offices of the Secretary to the Cabinet, Permanent Secretary, Director of Public Prosecutions (D.P.P.) Director of Audit, Chief Elections Officer, Chief of Police, Deputy Chief of Police, the Attorney General (where the holder is a public officer as opposed to a Member of Parliament), Head of a Department of Government, Deputy Head of a Department of Government, and the Clerk of the House. The holders of these offices are protected in some measure by Commissions to whom, and to whom alone, they must answer. The Constitution creates for four such Commissions. They are the Public Service Commission, in respect of all matters concerning the general public service and its officers; the Electoral Commission, with particular responsibility for the process of elections; the Constituency Boundaries Commission, in charge of matters pertaining to demarcation of the country's electoral constituencies; and the Police Service Commission, in charge of the affairs of our Police Service.

Now, how are persons appointed to these public offices? Take the case of the office of Permanent Secretary. It should be noted, first of all, that a person holding that office has responsibility for "supervision" of the administration of departments of Government within a particular Ministry. The word "supervision" is used here deliberately, because each department is managed by a Head of Department assisted by a Deputy Head of Department. This allows a single Permanent Secretary, if the need arises, to supervise "two or more Government departments," as provided for under Section 68 of the Constitution.

Permanent Secretaries are appointed under Section 86 of the Constitution. In making provision for this, as well as for their promotion, disciplinary control and dismissal, our Founding Fathers and Mothers were guided by a desire to protect such "permanent" public officials from domination by politicians. They must have been guided also by a belief that appointments and promotions should be based on merit rather than on favouritism. Hence, the Constitution places the power to appoint and remove a Permanent Secretary in the President, "acting in accordance with the advice of the Public Service Commission."

But, it then denies the Commission any discretion at all by providing at Section 86(2) (6) as follows: "before the Public Service Commission tenders advice to the President with respect to the appointment … it 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 advise the President to appoint that person." Further, where a Permanent Secretary or an Acting Permanent Secretary is to be transferred from his or her office to hold or act in another such office "carrying the same salary," the power to sanction that transfer rests in the President acting, this time, in accordance with the advice, not of the Public Service Commission but, of the Prime Minister.

In any event, the Prime Minister's control over the appointment of Permanent Secretaries is virtually assured by the extraordinary power given him to select as well as remove members of the Public Service Commission. The Commission is to comprise a Chairperson, a Deputy Chairperson, two members recommended by civic organisations, and not more than three other members. The Prime Minister independently advises, that is to say, instructs the President as to the appointment of the Commission's Chairperson and Deputy Chairperson. And, as to the other members, he does so following consultation with the Leader of the Opposition.

Of course, the tenure of members of the Commission is protected. That is to say, they cannot lawfully be removed at the pleasure of the party authorized to remove. The normal period of tenure is three years. And, by Section 84 (5), he or she may be removed from office "only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehavior." There must be reasonable cause. As was held in Trinidad and Tobago case, Thomas v. A.G. (1982) A.C. 113 at 124-7, PC, the power to remove public officers "must be understood as meaning 'remove for reasonable cause' … and not as embracing any power to remove at the Commission's whim." Further, Section 84(5) goes on to insist that a member "shall not be so removed except in accordance with the provisions of this section."

But, consistent with the tone of the Constitution, the Prime Minister is provided at Subsection 7 of the Section with a facility to cause a Commission member to be removed before expiration of the three-year term. The process is this. First, the Prime Minister represents to the President that the question of the removal of the member should be looked into. Thereupon, the President appoints a Tribunal comprising a Chairman and "not less than two other members" to investigate the case; members of the tribunal are selected by the Chief Justice. The Tribunal then reports to the President, recommending whether or not the member should be removed. Interestingly, during the period of the Tribunal's investigation, the Prime Minister has authority to advise the President to suspend the member pending submission of the Tribunal's report.

As with the appointment and removal of Permanent Secretaries so, too, with the Secretary to the Cabinet, Heads and Deputy Heads of departments of Government, the Clerk of the House (of Parliament) and certain other public officers. Notably, before the Public Service Commission or "any other person or authority" can exercise disciplinary control over the Clerk of the House or a member of staff, the Speaker of the House must be consulted. This is provided for under Section 85(5) of the Constitution. By Section 85(6) the same applies to a member of staff of the office of the Chief Elections Officer.

(c) William Para Riviere, 2013