THE term “Political Appointee’ has gathered interest over the last few weeks as we observe the transition of a new government. However, it is of interest to look within the Constitution to see if we can define a political appointee within the boundaries of the Constitution, and more importantly how removal can be achieved within the law. The Constitution places exclusions on the Public Service Commission to act independently to appoint, exercise disciplinary control and the power to remove certain classes of persons within the Government service.
This was reinforced in a judgment by the High Court in the case Emma Hippolyte vs. Attorney General – Suit 512 of 1993, in which the learned Judge Matthew conveyed his position. The case centred on Ms Hippolyte’s removal as Director of Audit by the Public Service Commission and confirmed that the Constitutional provision for removal was not vested in the Commission. In that case it was whether her contract of employment can be terminated even when there was such a clause stated.
Judge Matthew concluded that only if the appointment letter by the Governor General stated a prescribed time then and only then can such contract be not renewed. In that particular case the appointment letter of Ms Hippolyte had no time limit and thus her appointment was viewed as unlimited and the Constitutional provisions for removal which involved the setting up of a Tribunal would have to be followed.
This obviously is a very interesting judgment as it is saying that a contracted officer in a position where the Constitution places clear guidelines on removal cannot be removed even after the contract date expires, if the appointment letter did not place prescribed timelines. The terms of Employment are invalidated as the appointment becomes unlimited in time.
Let us explore these constitutional provisions. Section 86 (3) excludes the following officers from independent action of the Public Service Commission in appointing, disciplining and removal:
• Chief Elections Officer
• Director of Public Prosecutions
• Director of Audit
• Cabinet Secretary
• Permanent Secretary
• Head of Government Department
• Deputy Head of Government Department
• Chief Professional Adviser
• Office holders residing outside
• Office holder in Saint Lucia whose function relates to Foreign Affairs
• Magistrates, Registrars and Legal Officers ( Judicial and Legal Services Commission)
• Teachers ( Teaching Service Commission)
• Commissioner of Police
The Chief Elections Officer is appointed by the Governor General after consultation with the Electoral Commission and can be removed by the Governor General after such recommendation of a Tribunal. The Director of Public Prosecutions is appointed by the Governor General on the advice of the Judicial and Legal Services Commission and can be removed by the Governor General after such recommendation of a Tribunal. The Director of Audit is appointed by the Governor General on the advice of the Public Services Commission and can be removed by the Governor General after such recommendation of a Tribunal. In all cases the Tribunal is appointed by the Governor General who selects a Chairperson and at least two other members must be selected by the Chief Justice.
The situation gets interesting when you begin to look at Permanent Secretaries. Section 87 (2) states that the appointment, disciplinary control and removal of a Permanent Secretary is vested in the Governor General acting in accordance with the advice of the Public Service Commission. Section 87 (2) (b) however states that the Public Service Commission must consult with the Prime Minister and if there is an objection then the Commission cannot advise the Governor General on the appointment. So once the Permanent Secretary is appointed, the only discretion afforded to the Prime Minister is found in Section 87 (2) (b) which allows him to transfer from one office to another.
The removal of a Permanent Secretary can only be done by the Governor General on the advice of the Public Service Commission. We can thus conclude from the Emma Hippolyte vs. Attorney General judgement, that if a Permanent Secretary is on contract and the appointment letter did not state a prescribed time, then the court is saying that the appointment is unlimited in time and thus only the Public Service Commission can recommended to the Governor General for removal.
Lastly, Section 87 (2) ( c ) states that Ambassadors, High Commissioners and those accredited to any international organization shall be appointed by the Public Service Commission in accordance with the advice of the Prime Minister. The removal shall be by the Governor General acting on the advice of the Public Service Commission. Here again if the office holder is on contract and the appointment letter did not state a prescribed time, then the court is saying that the appointment is unlimited in time and thus only the Public Service Commission can recommended to the Governor General for removal.
The Emma Hippolyte vs. Attorney General judgement is thus an important matter for governments to be aware and to ensure that employment contracts for public officers are drafted in accordance with the Constitution.