The Official Executive - 2 | You and the Law

By Dr. William Para Riviere

Jan. 28, 2013

The offices of the Director of Public Prosecutions (D.P.P), the Director of Audit, the Chief Elections Officer, the Chief of Police and the Deputy Chief of Police are cut in virtually the same cloth as that of Permanent Secretaries, the Secretary to the Cabinet, Heads and Deputy Heads of Departments and the Clerk of the House. The D.P.P. and the Director of Audit, like Permanent Secretaries, are appointed by the President acting in accordance with the "advice" of the Public Service Commission. Further, according to Section 72(6), in the case of the D.P.P., and Section 83(7), as to the Director of Audit, of the Constitution, it is stipulated that "in the exercise of his functions," these office holders "shall not be subject to the direction or control of any other person or authority." This notwithstanding, Section 88(3) and 89(3) of the Constitution, respectively, provide that the Commission, before tendering its advice to the President as to appointment of the D.P.P. and the Director of Audit, must consult with the Prime Minister. As to dismissal, both officers are removed in the same manner as Permanent Secretaries.

As to the Chief Elections Officer, the President has somewhat more latitude. The appointment is made after "consultation" with, rather than on the "advice" of, the Electoral Commission. That Commission comprises five members, namely, the Speaker of the House as Chairman, two persons appointed on the advice of the Prime Minister, and two others on the advice of the Leader of the Opposition. As to removal of the Chief Elections Officer, the procedure differs from that for removal of Parliamentary Secretaries in two ways. Firstly, the Tribunal in question is set up by the President "acting in his own deliberate judgement". Secondly, the Prime Minister has jurisdiction to request investigation only into members of the Commission he or she has recommended; the same applies to the Leader of the Opposition. And by Section 38(5) the Chief Elections Officer in exercising his functions "shall not be subject to direction or control of any person or authority."

In the case of the Chief of Police and the Deputy Chief of Police, the Prime Minister, in terms of their appointment and removal, is invested with greater authority than he or she enjoys with respect to the Chief Elections Officer. Both officers are appointed or removed by the President. But this is done not in the President's own deliberate judgement, but acting in accordance with the Prime Minister's advice. Further, such advice must be given "after consultation with the Leader of the Opposition and the Police Service Commission." The same procedure applies to the appointment of a person to act in both offices. In any event, the Prime Minister is in control of appointing and, therefore, influencing members to the Police Service Commission. The Commission comprises a Chairman, Deputy Chairman, two persons selected by civil organisations and not more than three other members. The Chairman and Deputy are appointed on the advice of the Prime Minister; the others, on the advice of the Prime Minister after consultation with the Leader of the Opposition.

What the above analysis suggests is that, if our Constitution is merely glossed over, a reader might be left with the impression that the high-ranking officers charged with the public administration of our country have been equipped with tools which enable them to perform their duties in an independent setting, free from manipulation by the political directorate. Time and again, it is written into the Constitution that this or that Commission and this or that Public Officer, in the exercise of its or his functions under the Constitution, "shall … not be subject to the direction or control of any other person or authority."

This impression is made somewhat more credible by the setting up of a Public Service Board of Appeal under Sections 93 and 94. This Board enables public officers to challenge decisions taken against them in matters relating to their removal from office or to disciplinary action against them. And the Board by "a majority of its members" may either "affirm or set aside" the decision appealed against or, in the alternative, "make any other decision" which could have been made in the first instance. Further, the Board is composed of three persons, one of whom is appointed in accordance with the advice of the Prime Minister. The remaining members are appointed by the President as follows: the Chairperson, acting in "his own deliberate judgement"; and, the third, in accordance with the "advice" of the body or institution he or she represents.

Nonetheless, if our Constitution is properly examined, it becomes clear that mechanisms were not put in place to ensure that public officers would have discretion to act independently and free from political interference. The Constitution, quite systematically, places the balance of power of appointment and removal of those charged with public administration firmly in the hands of the Prime Minister. As discussed above, it does so, in some cases, by investing the Prime Minister, by virtue of his advice to the President, with power to make a direct appointment. But, even where that is not so, and selection lies with the appropriate Commission, the Prime Minister's influence is made virtually certain by his or her control over the appointment and removal of members of the Commission in question.

Those who "gave" us our Constitution made a fundamental miscalculation.
They imagined that what was good for a Colonial Power with three hundred years of democratic practice would be good for a colony like ours emerging into nationhood after just twenty-seven years of universal adult suffrage. That assumption is flawed. Three hundred years of democratic practice had allowed for the development of political relations in the United Kingdom based on the behavior and interaction of deeply-rooted institutions that had stood the test of time. That was not the case in our country in 1978. Colonial rule is essentially authoritarian, if not dictatorial. And, so, the legacy which we inherited from the Colonial Power was one in which, taking account of our political culture which is characterized by authoritarian rule and colonial domination and, given our numerically small size, political relations would be conducted more by interaction between persons rather than, as in the mother country, through a system of long-standing institutions. Thus, in the unwritten Constitution of the United Kingdom the office of Prime Minister meant and was, in practice, taken to mean the institution of the Prime Ministership. But, in our Constitution, by contrast, although it meant the institution of the Prime Ministership, it was taken to mean in our political culture the individual person of the Prime Minister. In such a situation it was sheer fantasy to believe that the Westminster model of government would be appropriate for newly-emerging nation-states like ours.

A final word. Last week's "You and the Law" came to the conclusion that the Constitution gives the Prime Minister absolute control of the Political Executive. Now, you may be wondering whether it did not, as well, place in his or her hands full and decisive command over the Official Executive.