|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Barbados Supreme Court |
] [Hide Context] Constitutional law - Existing law - Constitution of Barbados, s. 26(1) - Civil Establishment Act an existing law within s. 26(1) - Effect of existing law on decision of Government to reduce salaries of public officers.
Constitutional law - Fundamental rights and freedoms - Right not to be deprived of property without compensation - Meaning of "property of any description" - Constitution of Barbados, section 16(1) - Emoluments under contract of employment - Emoluments curtailed by Act of Parliament.
Facts: The plaintiff held a public office in Barbados. Under the Civil Establishment Act emoluments on an incremental basis were attached to the office held by her. In 1991 Parliament enacted the Public Service Reduction of Emoluments Act which reduced her emoluments and increments between 1991 and 1993. The plaintiff challenged the validity of the 1991 Act, claiming that it contravened section 16 of the Constitution (no property of any description [189] compulsorily taken possession of except under the authority of a written law providing for compensation).
Held: (i) on the true construction of section 94(1) of the Constitution (power to make appointments to public office), in the absence of due cause the exercise of the power under that provision did not itself preclude a subsequent interference with the plaintiff's emoluments. The language of section 94(1) would not reasonably bear such a construction. Furthermore, such a construction would be inconsistent with the express inclusion in section 112 of protection for the salaries and terms of office of certain specified public officers and with the express power under the Civil Establishment Act to vary the emoluments of the holders of established offices in the public service;
(ii) by inference, the salary, allowances and other terms of service of the holder of a public office not specified in section 112(4) could be altered after appointment to her disadvantage by an ordinary law; moreover, there was an implied term in the plaintiff's contract of employment which enabled the Crown to vary her emoluments unilaterally; accordingly, the Public Service Reduction of Emoluments Act, 1991 was in accord with the Constitution and either did not deprive her of any constitutional right or, if it did, the deprivation was a necessary incident to her contract of employment;
(iii) the expression "property of any description" in section 16(1) of the Constitution was to be read in a wide sense; it included the ordinary case of emoluments under a contract of employment, but not emoluments so far as the right or entitlement to them was curtailed by an Act of Parliament duly made within the constitutional powers.
Cases referred to:
A.G. v. Alli [1989] L.R.C. (Const.) 474.
Attorney-General of the Gambia v. Jobe [1984] A.C. 689; [1984] 3
W.L.R. 174; [1985] L.R.C. (Const.) 556.
Bribery Commissioner v. Ranasinghe [1964] UKPC 1; [1965] A.C. 172; [1964] 2 All E.R. 785;
British Imperial Oil Co. Ltd v. Federal Commissioner of Taxation [1926] HCA 58; (1926) 38 C.L.R. 153.
Director-General of Education v. Suttling [1987] L.R.C. (Const) 1062.
Hinds, Hutchinson, Martin, Thomas v. R. (1975) 24 W.I.R. 326;
[1977] A.C. 195; [1976] 1 All E.R. 353; [1976] 2 W.L.R. 366.
Inland Revenue Commissioner v. Lilleyman (1964) 7 W.I.R. 496.
Kodeewaran v. Attorney-General of Ceylon [1970] A.C. 1111;
Norton v. Public Service Commission [1988] L.R.C. (Const.) 944.
Ooi Boon Leong v. Citibank NA [1984] 1 W.L.R. 723.
R. v. Civil Service Appeal Board, ex parte Bruce [1988] 3 All E.R. 686. [190]
R. v. Tonkins [1954] 1 A.L.R. 777.
Reilly v. R. [1934] A.C. 176; [19331 All E.R. Rep. 179.
Roshan Lal v. Union of India [1967] A.I.R. S.C. 1889.
Rowley v. Petroleum and Natural Gas Conservation Board [1943] I W.W.R.
470.
Sebag-Montefiore, Re Sebag-Montefiore v. Alliance Assurance Co Ltd. [1944] Ch. 331; [1944] 1 All E.R. 672.
Thomas v. Attorney-General (1981) 32 W.I.R. 375; [1982] A.C. 113; [1981] 3
W.L.R. 601.
Statutes and statutory instruments referred to:
Auditor-General (Appointment, Conditions of Service and Dismissal) Act, 1961.
Barbados (Letters Patent Consolidation) Order, 1964, Sched. 2.
Civil Establishment Act, Cap. 21, ss. 2. 3, 6, 7.
Civil Establishment (General) Order, 1990.
Constitution of Barbados, ss. 11, 16(1), 26, 48, 94.
Director of Public Prosecutions Act, 1963.
Existing Laws (Amendment) Order (No. 2), 1967.
Gun Court Act, 1974 (Jamaica).
Interpretation (Amendment) Act, 1961.
Judicial and legal Service Commission Act, 1961.
National Development Savings Levy Ordinance, 1962 (Brit. Guiana).
Public Service Commission Act, 1961.
Public Service Reduction of Emoluments Act, 1991, s. 24.
Public Service Regulations, 1978.
Dr. R.L. Cheltenham, Q.C., C. A. Williams, Q.C. and P. Cheltenham for the
plaintiff.
Maurice King, Q.C., Mrs. M. Crane-Scott and D. Taylor for the defendant.
WILLIAMS, C.J.:
Protection of fundamental rights to property Section 11 of the Constitution recites that every person in Barbados is entitled to the fundamental rights and freedoms of the individual including the right, subject to respect for the rights and freedoms of others and for the public interest, to protection from deprivation of his property without compensation.
In order to protect that right, section 16(I) enacts inter alia that no property of any description may be compulsorily taken possession of, and no interest in or right over property of any description may be compulsorily acquired, except by or under the authority of a written law, and where provision applying to that acquisition or [191] of possession is made by a written law (a) prescribing the principles on which and the manner in which compensation therefor is to be determined and given, and (b) giving to any person claiming such compensation a right of access to the High Court, either directly or by way of appeal, for the determination of his or her interest in or right over the property and the amount of compensation. Subsections (2) to (4) set out various circumstances in which no part of, and nothing contained in, any law is to be held inconsistent with or in contravention of the section.
Section 24 provides (inter alia) that if any person alleges that section 16 has been contravened in relation to him or her, he or she may apply to the High Court for redress.
The application and the grounds thereof
This is an application by Gladwyn Ophelia King ("the plaintiff") against the Attorney-General ("the defendant") pursuant to section 24 and follows the enactment by Parliament of the Public Service Reduction of Emoluments Act, 1991 ("the 1991 Act"), which came into operation on 1st October, 1991. According to its long title, it is an Act to provide for a reduction in the emoluments of public officers and other employees in the public service and related bodies.
The plaintiff complains that this Act infringes her rights under section 16 and seeks the following relief: (a) a declaration that the 1991 Act contravenes section 16; (b) a declaration that she is entitled to salary, increments and other emoluments as if the 1991 Act had not been enacted; (c) an order that salary, increments and other emoluments unpaid by reason of the enactment of the 1991 Act be paid with interest for such period as payment is in arrears down to actual payment at such rate as may be appropriate; (d) further and other relief; and (e) costs.
She supports her application as follows. (1) The plaintiff is and was at all material times duly appointed and employed in the public service under a contract of service providing for the emoluments payable in respect of services rendered or to be rendered by her and the plaintiff has rendered the required services and has thereby earned and continues to earn her agreed emoluments under her appointment and contract of service; (2) the 1991 Act purports to authorise a reduction, deprivation or suspension of the plaintiff's emoluments as defined therein by 8 per cent per annum or otherwise during the period 1st October, 1991 to 30th, September 1993, thereby taking away or depriving the plaintiff without compensation of emoluments properly earned and/or due, owing and payable to her by the defendant who is or who represents the Crown as employers in the public service and under her contracts or agreements for service and the terms and conditions of her appointment; (3) the 1991 Act by depriving the plaintiff of or by taking away the said portion of her emoluments without compensation in accordance with its full terms and effect contravenes the guarantee of fundamental rights and freedoms entrenched in the Constitution and in particular section 16(1) which protects the [192] fundamental right and freedom whereby every person in Barbados is free from deprivation of property without compensation in terms of paragraph (b) thereof; (4) to the extent that the 1991 Act contravenes section 16 it is unconstitutional, void and of no effect by reason of the provisions of section 1 of the Constitution; (5) the deprivation of emoluments has caused the plaintiff grave hardship and the plaintiff is seeking an urgent hearing of this motion to determine her rights.
Section I of the Constitution enacts that the Constitution is the supreme law of Barbados and, subject to its provisions, if any other law is inconsistent with the Constitution, the Constitution will prevail and the other law will, to the extent of the inconsistency, be void.
The plaintiff's affidavit
The plaintiff in her supporting affidavit deposes:
"I. I am twenty-eight years of age . . .
2. I am a public servant duly appointed to my office by the Public Service Commission established by the Constitution . . . in accordance with the terms and conditions set out by the said commission and I hold office subject to the jurisdiction of the said commission in all matters concerning my appointment, promotion and discipline and in accordance with the Service Commission's Public Service Regulations, 1978 and all other laws for the time being in force, applicable thereto.
3. I commenced working continuously in the public service from 1st November 1981 and my appointment to the public service was effective from 1st August 1989. It was specifically indicated in my letter of appointment that the period of continuous service prior to my appointment would be considered for pensionable service.
4. I hold office as a clerical officer in the Ministry of Education and am performing services as are required by me under the terms of my appointment and contract of service with the Crown in right of the Government of Barbados. At present I am in the salary scale Z28 to Z24 and prior to October 1991, my annual salary was $18,440.76.
5. Since 1982 I have received continuously each year an increment and I was looking forward to the increment due this November as no decision adverse to me in respect of the terms and conditions of my service or in respect of emoluments of any kind has been taken by the Public Service Commission. [193]
6. In January 1991 a general election was held in Barbados in which the parties contending for control of the Legislature addressed the question whether there would be a devaluation of the Barbados dollar. The present Government in office which was also the Government in office prior to the said election maintained that there would be no devaluation of the Barbados dollar and the public of Barbados were so informed throughout the campaign.
7. In September 1991 the Government issued circular No. 9/1991 requiring public servants and servants of other public authorities to express agreement or disagreement with reduction of emoluments by 8 per cent to avoid the devaluation of the Barbados dollar. The decision of a person affected was to be on an option form provided, showing whether the employee agreed or did not agree. I exercised my option within the time frame indicated by not agreeing to the proposed reduction of my salary . . .
8. The Legislature of Barbados thereafter enacted the Public Service Reduction of Emoluments Act, 1991
9. The said Act purported to deprive employees in the public service and other bodies funded by Parliament of a portion of their emoluments in terms of the provisions thereof.
10. I am advised by my attorneys and verily believe that the provisions of the said Act contravene the provisions of section 16 of the Constitution which section was enacted to protect fundamental rights and freedoms guaranteed by section 11 thereof and that the Act is unconstitutional, null, void and of no effect and I rely upon the grounds for redress set out in the notice of motion herein.
11. The said Act purports to deprive me and has already deprived me of the following money: in October 1991 I received $1,413.79 gross as opposed to $1,536.73 in the month preceding, so that my gross salary became $122.94 less; put differently, my annual salary prior to the Act in dispute was $18,440.76; with the 8 percent reduction it is now $16,965.50 or $1,475.26 less, and such deprivation is continuing."
The plaintiff's further affidavit
On 1st January, 1992 the plaintiff filed a further affidavit in response to an affidavit filed by Lionel Moe, Permanent Secretary in the Ministry of the Civil Service, and in this affidavit she alleges that there is another respect in which the 1991 Act breaches her constitutional rights. She deposes that she is advised by her attorneys and believes that: (a) no procedures under the Civil Establishment Act were invoked against her and in any event the Act does not bear the interpretation contended for by Mr. Moe; (b) the purported reduction of her emoluments under [194] the 1991 Act was in contravention of the powers vested in the Governor-General and Service Commission pursuant to section 94 of the Constitution in respect of her appointment and terms and conditions of service including her emoluments; (c) she was serving the Crown under a contract of service and in any event the terms relating to her emoluments and increments were contractual; (d) her contract of service was neither amended nor altered by the 1991 Act which, by its terms, assures the continued existence of her contract, but provides for a deprivation of monetary payments to which she is entitled for a period ending in 1993 when the bar to her receipt of her emoluments will be removed; and (e) the purported amendment of her contract of service, if such there is, contravenes the provisions of section 94 of the Constitution by virtue of which she holds her appointment with the terms and conditions of service including emoluments which were determined by the Governor-General acting on the advice of the Public Service Commission pursuant to section 94 of the Constitution and collides with section 16.
Section 94 of the Constitution
Section 94 enacts as follows:
"(1) Subject to the provisions of this Constitution power to make appointments to public offices and to remove and to exercise disciplinary control over persons holding or acting in such offices, is hereby vested in the Governor-General, acting in accordance with the advice of the Public Service Commission.
(2) Before the Public Service Commission advises the appointment to any public office of any person holding or acting in any office power to make appointments to which is vested by this Constitution in the Governor-General, acting in accordance with the advice of the Judicial and Legal Service Commission or the Police Service Commission, it shall consult the Judicial and Legal Service Commission or the Police Service Commission, as the case may be.
(3) The provisions of this section shall not apply in relation to - (a) the office of any member of the Governor-General's personal staff; (b) any office to which section 93 applies; (c) any office in the Police Force; (d) any office to which section 100 applies; (e) so far as they relate to power to make appointments on transfer, any office to which section 100A applies; (f) the office of the Director of Public Prosecutions; and (8) the office of the Auditor-General."
The case for the plaintiff
Dr. Cheltenham defines the central issue in the case in this way: whether Parliament can by ordinary legislation pass a law depriving a public servant of 8 per cent of her salary and suspending her increments, notwithstanding sections 16 and [195] 94 of the Constitution. He submits that Parliament cannot do so and that the 1991 Act should be struck down as unconstitutional on two grounds: (1) the plaintiff's relationship with the State is essentially contractual, the contract being influenced by statutes, regulations and the Constitution itself, particularly section 94; when once the plaintiff was appointed to salary scales by the Governor-General acting on the advice of the Public Service Commission, she became insulated from the vagaries of the political class and the Legislature cannot reduce her salary and freeze her emoluments against her will, except through the intervention of the Public Service Commission; in short, the impugned 1991 Act collides with section 94 of the Constitution; and (a) when the plaintiff is deprived of 8 per cent of her salary for eighteen months and her increments are frozen for that period, she is deprived of "property" within the meaning of section 16 of the Constitution; and since the 1991 Act has made no provision for compensation it collides with the plaintiff's constitutional property rights.
The Permanent Secretary's affidavit
Mr. Moe, Permanent Secretary in the Ministry of Civil Service, made no admission as to paragraphs 1 to 3 of the plaintiff's first affidavit and responded to the other paragraphs as follows:
"3. As to paragraph 4 of the plaintiff's affidavit, I am advised and verily believe that the plaintiff was not employed under a contract of service with the Crown in right of its Government of Barbados or under any contract at all.
4. By virtue of the provisions of the Barbados Constitution... public officers hold office in the service of the Crown in a civil capacity.
5. By virtue of the provisions of section 94 of the Constitution, power to make appointments to public offices and to remove and exercise disciplinary control over persons holding or acting in such offices is vested in the Governor-General acting on the advice of the Public Service Commission.
6. By virtue of the provisions of section 95 of the Constitution, the Governor-General acting in accordance with the advice of the Public Service Commission may delegate the powers vested in the Governor-General under section 94 of the Constitution to one or more members of the Public Service Commission or to such public officer as may be specified.
7. In the alternative, I am advised and I verily believe that if the plaintiff was employed under a contract of service as alleged, such contract may be varied unilaterally by Parliament.
8. As to paragraph 5, I am advised and I verily believe that the plaintiff is not entitled as of right to receive increments on salary in each or any year. [196]
9. As to paragraphs 9, 10 and 11 of the plaintiff's affidavit, I state that Parliament, by powers vested in it by the Constitution for the making of laws for the peace, order and good government of Barbados, enacted the Public Service Reduction of Emoluments Act, 1991... which reduced with effect from 1st October 1991 rates of emoluments payable to several persons or in respect of several services by 8 per cent less than the rate payable on 30th September 1991, such reduction to remain in force until 31st March 1993. The Act also specified that no officer shall be entitled to an increment during the period 1st October 1991 to 30th September 1993.
10. I am advised and I verily believe that the provisions of the Act do not contravene section 16 or any other section of the Constitution of Barbados.
11. I am further advised and I verily believe that by virtue of section 2 of the Civil Establishment Act the Minister responsible for the Civil Service has power to determine by Order subject to affirmative resolution, the emoluments to be attached to offices in the public service and that power includes a power to increase, decrease, vary, add to or change any such emoluments.
12. I am further advised and I verily believe that the Act is in effect an exercise of the power referred to in paragraph 11 and is a lawful exercise of such power."
The other affidavits
Also filed on behalf of the defendant were affidavits by George L. Reid, the Director of Finance and Economic Affairs in the Ministry of Finance and Economic Affairs, and Kurleigh D. King, the Governor of the Central Bank. An affidavit by Alfred Wendell A. McClean, senior lecturer in Economics at the University of the West Indies, Cave Hill, was filed on behalf of the plaintiff.
Dr. Reid's affidavit was filed on 1st January 1992 and in it he deposes as to his qualifications and employment record and the functions of his office. He goes on to refer to financial reports, accounts and statements relating to Government revenues and expenditures and gave his belief: (a) it was necessary for the Government to take serious action to achieve a better balance between its revenue and expenditure; (b) such action would have had, of necessity, to include, a reduction in public expenditure; and (c) a reduction of the amount paid in wages and salaries to all Government employees was an essential element of a programme to reduce the size of Government expenditure to promote the recovery of the economy.
Dr. King's affidavit was also filed on 1st January 1992 and he deposes as to his qualifications and duties. He refers to persistent fiscal deficits accompanied by an excess of foreign exchange expenditures over the foreign exchange receipts and to [197] pressure on the country's foreign exchange reserves. He goes on to state his belief that (i) it was necessary for the Government to take serious action to reduce the pressure on the foreign exchange reserves by reducing or eliminating fiscal deficits; (ii) any programme of recovery would therefore of necessity have to include as a component thereof, a sharp reduction in the Government deficit or alternatively a devaluation of the Barbados dollar in order to achieve a better balance between foreign exchange earned and spent; (iii) a devaluation of the Barbados dollar would trigger a series of further devaluations and would lead to serious financial instability in Barbados and would not be in the public interest; and (iv) the salaries and wages paid to Government employees from the Consolidated Fund account for nearly 50 per cent of Government's current expenditure and that a sufficient reduction in the deficit could not be achieved without a reduction in the Government expenditure on salaries and wages. Dr King concludes by stating that he is aware that the Government has included in its recovery programme the requirement that the emoluments of public officers and other employees in the public service and related bodies be reduced by 8 per cent, that he believes that the reduction of emoluments as provided for in the 1991 Act is a necessary element of a programme to restore the country's foreign exchange reserves to an adequate level, and that an 8 per cent reduction is reasonable and in the public interest.
Mr. McClean's affidavit was filed on 20th February 1992 and he deposes as to his qualifications, publications and experience. He challenges certain assertions made by Dr. Reid and Dr. King and he dissents from Dr. King's opinion that the reduction of emoluments as provided for in the 1991 Act is a necessary element of a programme to restore the country's foreign exchange reserves to an adequate level and that an 8 per cent reduction is reasonable and in the public interest. Mr. McClean deposes as to his belief that (a) it was possible to formulate a practicable and effective programme to restore the country's foreign reserves to an adequate level without reducing the salaries and wage rates of employees in the public service; indeed it was possible to restore the salaries and wages of employees in the public service to their former levels with retroactive effect and still implement a practicable, effective and legitimate programme which could restore the country's foreign exchange reserves to an adequate level; (b) Government expenditure could have been reduced to the level desired by Government, or to any other appropriate level, without reducing the salaries and wage rates of Government employees; (c) if, at this time or early in the fiscal year 1992-93, the salaries and wage rates of Government employees were to be restored retroactively to their former levels, the Government could still achieve a level of expenditure in the fiscal year 1992-93 and beyond, which was sufficiently low to accord with sound fiscal policy conducive to the recovery of the economy; (d) reduction in the salaries and wage rates of employees in the public sector was not unavoidable and was not a necessary element of a programme to reduce Government expenditure and promote the recovery of the economy; and (e) a reduction in the salaries and wage rates of employees in the public sector did not constitute either a necessary or [198] an appropriate element of a programme to restore the country's foreign reserves to an adequate level.
The case for the defendant
The following paragraphs summarise the approach of the defendant to the issues in the case.
(1) The legal position of the plaintiff in relation to the Crown depends more on status than on contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The plaintiff's emoluments and her terms of service are governed by statute or statutory rules which may be unilaterally altered by the Crown without her consent.
(2) Even if her legal relationship with the Crown is contractual, it is a contract which the Crown could alter unilaterally. There are no constitutional impediments to Parliament altering her emoluments without her consent.
(3) If the plaintiff's salary is property within section 16(1), Parliament legislated within section 16(2)(a)(iii), which enacts that nothing contained in or done under the authority of any law will be held to be inconsistent with or in contravention of section 16 to the extent that the law in question makes provision for the taking of possession or acquisition of any property as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge, contract, grant, permission or licence. That Parliament acted reasonably and in the public interest in enacting the legislation, is demonstrated by the affidavits of Dr. Reid and Dr. King and it cannot be said that its actions were unreasonable or arbitrary.
(4) Section 4 of the 1991 Act (which provides for the 8 per cent reduction of the plaintiff's emoluments) is an existing law or a modified existing law that is protected under section 26 of the Constitution.
(5) The courts have to respect the judgment of the executive when legislation is within the competence of Parliament. In this case Parliament legislated within its power under section 48 to make laws for the peace, order and good government of Barbados.
(6) The 1991 Act must be presumed to be constitutional until it is shown to be otherwise.
Summary of facts
The facts on which the issues in this case fall to be decided are not in dispute and can be summarised in this way. The plaintiff is the holder of an office of emolument in the service of the Crown in a civil capacity in respect of its government of Barbados, having been appointed, with effect from 1st August, 1989, to an office established under the Civil Establishment Act. Under that Act [199] emoluments on an incremental basis are attached to the office held by the plaintiff. In 1991 Parliament enacted the 1991 Act which reduced with effect from 1st October, 1991 and until 31st March, 1993 the rate of emoluments attached to her office and also provided that there should be no increments during the period from 1st October 1991 to 30th September 1993.
The Civil Establishment Act
The Civil Establishment Act is, according to its long title, an Act to provide for the establishment of offices in the public service, for the numbers and remuneration of public officers and for purposes connected therewith. It came into operation on 1st April, 1948, but has been amended from time to time. The relevant provisions are reproduced hereunder:
"2. (1) The Minister may from time to time by Order -
(a) establish offices in the public service;
(b) determine the number of persons who may be appointed to such offices;
(c) prescribe the qualifications to be possessed by persons appointed to such offices;
(d) determine the emoluments to be attached to such offices; and
(e) authorise the payment of the cost of passages of officers and their families travelling outside the Island. . . .
(2) An Order under subsection -
(i) may contain such incidental, consequential and supplemental provisions as the Minister thinks necessary or expedient for giving full effect to the Order, including provisions -
(a) for making, in any enactment regulating the number of offices in respect of which, or the number of office-holders in respect of whom, salaries may be paid, such modifications as may be expedient;
(b) for the adaptation, amendment or repeal of any enactment relating to the appointment, powers, duties, rights and liabilities of any officer holding any office specified in an Order or bearing the [200] same style and tide as an officer appointed to any office specified in an Order.
(3) An Order under subsection (1) may provide that it shall be deemed to have had effect as from 1st April 1948.
(4) An Order under subsection (1) shall be provisional only and shall be of no effect until it has been laid before Parliament and approved by a resolution of each House:
Provided that this subsection shall not apply to any provision in any such Order where such provision relates to the qualifications to be possessed by persons appointed to offices in the public service.
(5) The power conferred on the Minister by this section to make Orders shall be deemed to include a power exercisable in the like manner and subject to the like conditions, to vary or revoke any such Order.
3. Where the emoluments attached to an office established by an Order under section 2 include a salary on an incremental scale, the Governor-General may order -
(a) that the initial salary of any person appointed to such office shall include such an amount on increment as he thinks expedient;
(b) that in any case in which it appears to the Governor General that there are special circumstances relating to the amount of salary or annual increments of a person already appointed to such office which operate unfairly upon, or to the prejudice of such person and which warrant special adjustment, the salary of such person shall be adjusted within the limits of the scale in such manner as the Governor-General may deem expedient. . .
6. All moneys payable under the provisions of any Order made under section 2 shall be charged on and paid out of the Consolidated Fund.
7. The powers conferred by or under this Act shall be in addition to and not in derogation of the powers exercisable by virtue of the prerogative of the Crown." [201]
The first ground: the 1991 Act and sections 16 and 94 of the Constitution
With respect to the first ground Dr. Cheltenham's submission is that the words "power to make appointments to public offices" in section 94(1) mean more than they prima facie suggest and, properly construed, have the extended meaning that, when an officer is appointed to an office by virtue of section 94(1), he or she is appointed to the office at the salary or salary scales attached to the office and becomes insulated from the vagaries of the political class. His or her emoluments thereafter are protected from being frozen or reduced unless done through the intervention of the independent Public Service Commission acting in the exercise of its disciplinary powers. This, it is submitted, is the only method (short of the special parliamentary procedure prescribed by section 49 of the Constitution for altering, inter alia, the fundamental rights provisions of Chapter III) by which an officer's emoluments can be frozen or reduced and the 1991 Act, by seeking to effect such an end through ordinary legislation, offends the Constitution.
The submission is, in effect, that once an officer is appointed to an office pursuant to section 94(1), there is (save through the special constitutional procedure as indicated above) no power to interfere with his or her emoluments unless he or she gives cause, for the disciplinary powers of the commission can obviously not be resorted to without some reason being shown. In this case, since the plaintiff has given no cause for disciplinary measures being taken against her and the commission has in fact not disciplined her or gone through any procedures for that purpose, the reduction of her emoluments effected by the 1991 Act is unconstitutional.
This is certainly a novel approach to the relatively straightforward provisions of section 94(1) the language of which seems to do no more than to confer on the commission powers with respect to appointment, removal and discipline. But, apart from the undue and unacceptable strain which such a construction would place on the language of the provisions, at least two other difficulties confront Dr. Cheltenham on this submission.
Section 112(3) of the Constitution enacts (inter alia) that the salary and allowances payable to the holder of any office to which the section applies and his or her other terms of service will not be altered to his or her disadvantage after his or her appointment. And section 112(4) provides that the section applies to the offices of Governor-General, judges, Director of Public Prosecutions, Auditor-General, appointed members of the Judicial and Legal Service Commission and members of the Public Service Commission and the Police Service Commission. Now the Governor-General, the judges, the Director of Public Prosecutions and the Auditor-General are all appointed to offices at the salaries attached respectively to those offices, the Governor-General by Her Majesty, the judges by the Governor-General on recommendation of the Prime Minister after consultation with the leader of the Opposition, the Director of Public Prosecutions by the Governor-General acting on the recommendation of the Judicial and Legal Service Commission, and the Auditor-General by the Governor-General on the [202] recommendation of the Public Service Commission after that commission has consulted the Prime Minister. The question that arises is why was it necessary to make special provision in section 112 protecting the salaries of the holders of these offices against alteration to their disadvantage after their appointments? Why would not the same argument put forward by Dr. Cheltenham have applied so as to protect the emoluments of the holders of these offices from being reduced?
Secondly, the Civil Establishment Act is an "existing law" within the meaning of section 26(1) of the Constitution which enacts that nothing contained in or done under the authority of an existing law will be held to be inconsistent with or in contravention of any provision of sections 12 to 23. Section 2(1) of that Act enables the Minister from time to time by Order to determine the emoluments to be attached to established offices in the public service and section 2(5) enacts that the power conferred on the Minister by the section to make Orders is deemed to include a power, exercisable in the like manner and subject to the like conditions, to vary or revoke any such Order. The word "vary" in its ordinary use has a wide connotation. There would be no justification for construing it differently when it is used in a legal instrument or document unless the context requires otherwise. In Re Sebag-Montefiore, Sebag Montefiore v. Alliance Assurance Co Ltd [1944] Ch. 331 Lord Greene, M.R. had in mind the ordinary meaning of the word "varied" when he said (at page 338) that if mere increase of the amount is a variation, mere decrease also must be a variation. In Rowley v. Petroleum and Natural Gas Conservation Board [1943] 1 W.W.R. 470 at page 476 Macdonald, J said:
"But it is argued that the word `vary' means simply to alter the form and not the substance of something and that the use of the words `foregoing provisions' restricts any variation of the agreement to matters already dealt with therein and precludes the introduction of any new matter by way of amendment.
The word `vary' in its ordinary use as well as in legal phraseology is quite comprehensive in meaning . . ."
In R. v. Tonkins [1954] HCA 38; [1954] A.L.R. 777 Dixon, C.J., delivering the judgment of the High Court of Australia, said (at page 779):
"The word `vary' is one which no doubt in different contexts may have different meanings. In section 49 there is a distinction drawn between setting aside an award or any of the terms of an award and varying any of the terms of an award. But the distinction made, at all events in words, between setting aside and variation, can carry no restriction upon the meaning of `variation' beyond showing that it refers to a change in some part of the award. Probably it is enough to say that to vary the terms of the award is to change them in part whether by addition, by excision, by modification or by substitution or by qualification or otherwise."[203]
In Black's Law Dictionary (abridged 5th Edn) "variable interest rate" is defined as a flexible rate of interest which increases or decreases according to current market rates.
Section 2(5) gives the Minister power to vary or revoke an order determining the emoluments to be attached to established offices.
"Revocation" means the withdrawal, rescission or cancellation of what has been done. In the context in which the Minister can take such action, it would seem to me impossible to resist the conclusion that "vary" too must have a comprehensive meaning, indicating in effect anything short of a revocation. This conclusion stands as an impediment to the validity of the construction which Dr. Cheltenham would put on section 94(1) of the Constitution.
In my judgment the first ground must fail, not only because the language of section 94(1) cannot reasonably bear the construction which Dr. Cheltenham seeks to put on it, but also for the reason that such a construction is inconsistent with (1) the inference, to be drawn from the inclusion in the Constitution of the provisions of section 112, that the salaries and terms of services of public officers (other than those specified in the section) may be altered to their disadvantage while in office; and (2) the conferment on the Minister responsible for the Civil Service by the Civil Establishment Act of the power to vary the emoluments of the holders of established offices in the public service.
The second ground: the 1991 Act and section 16 of the Constitution
I will summarise the basic principles that must guide me in reaching a decision on the second ground. I begin with a passage from Professor de Smith's The New Commonwealth and Its Constitutions, page 77:
"Among the characteristic features of modern Commonwealth Constitutions are the limitation of parliamentary sovereignty, guarantees of fundamental human rights, judicial review of the constitutionality of legislation . . . The aim of many of these provisions is to capture the spirit and practice of British institutions; the methods of approach involve the rejection of British devices and the imposition of the un-British fetters on legislative and executive discretion."
Barbados has such a Constitution and Parliament has to act within its constitutional limitations. Its Acts can be questioned in this court and may be held invalid. But as was said by Isaacs, J. in British Imperial Oil Co Ltd. v. Federal Commissioner of Taxation [1926] HCA 58; (1926) 38 C.L.R. 153 at page 180:
"It is always a serious and responsible duty to declare invalid, regardless of consequences, what the national Parliament, representing the whole people of Australia, has considered necessary or desirable for the public welfare. [204] The court charged with the guardianship of the fundamental law of the Constitution may find that duty inescapable. Approaching the challenged legislation with a mind judicially clear of any doubt as to its propriety or expediency - as we must, in order that we may not ourselves transgress the Constitution or obscure the issue before us - the question is: Has Parliament, on the true construction of the enactment misunderstood and gone beyond its constitutional powers? It is a received canon of judicial construction to apply in cases of this kind with more than ordinary anxiety the maxim `Ut res magis valeat quam pereat'. Nullification of enactments and confusion of public business are not lightly to be introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will . . . There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds."
There is thus a presumption in favour of the constitutional validity of an
Act which is challenged as unconstitutional and the burden is on him or her who complains to show that there has been a clear transgression of the constitutional provisions. The court is not concerned with questions of the propriety or expediency of the legislation but only whether Parliament has gone beyond its constitutional powers. In this case Parliament has enacted the 1991 Act pursuant to its powers under section 48 to make laws for the peace, order and good government of Barbados, subject to the provisions of the Constitution. As was said by Massiah, C. in Attorney-General v. Alli [1989] L.R.C. (Const.) 474 at page 489:
". . . the words `peace, order and good government' do not define and delimit the categories of legislation which Parliament may properly enact, but merely state in compendious formulation the repleteness of Parliament's legislative authority. Our Parliament is sovereign and may make such laws as it chooses provided it makes none that the Constitution forbids, for then it would be acting ultra vires. It is therefore, to borrow a phrase much in use, `sovereign within its powers'."
Lord Pearce in Bribery Commissioner v. Ranasinghe [1964] 2 All E.R. 788 at page 791 explained the meaning of the words in a passage which can be adapted to reflect the legislative power of Parliament in a Constitution such as ours:
"Any laws could be made for `the peace, welfare and good government of the Colony', the phrase habitually employed to denote the plenitude of sovereign legislative power, even though that power be confined to certain subjects or within certain reservations. The Constitution thus established placed no restrictions on the manner in which or the extent to which the law-making power could be exercised, either generally or for particular purposes, except [205] for the provisions, then customary, as to a reservation and disallowance of bills . . . "
Parliament in Barbados is "sovereign within its powers" and may make such laws as it pleases, provided that it makes none that the Constitution forbids.
I refer next to the words of Lord Diplock in Attorney General of the Gambia v. Momodou Jobe [I985] L.R.C. (Const.) 556 at page 575:
"A Constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the State are entitled, is to be given a generous and purposive construction."
And lastly, to the words of the same eminent Law Lord in Hinds, Hutchinson, Martin, Thomas v. R. (1975) 24 W.I.R. 326 at page 333:
"The purpose served by this machinery for entrenchment is to ensure that those provisions which were regarded as important safeguards by the political parties in Jamaica, minority and majority alike, who took part in the negotiations which led up the Constitution, should not be altered without mature consideration by the Parliament and the consent of a larger portion of its members than the bare majority required for ordinary laws. So, in deciding whether any provisions of a law passed by the Parliament of Jamaica as an ordinary law are inconsistent with Constitution of Jamaica, neither the courts of Jamaica nor their Lordships' Board are concerned with the propriety of the law impugned. They are concerned solely with whether those provisions, however reasonable and expedient, are of such a character that they conflict with an entrenched provision of the Constitution and so can be validly passed only after the Constitution has been amended by the method laid down by it for altering that entrenched provision."
The common law power of the Crown to dismiss at will
It is established that at common law the Crown has power to dismiss its servants at will. J.F. Garner in his Administrative Law (5th Edn) 1979, page 40, summarises the position in this way:
"At common law the civil servant is in a precarious position. Whereas he seems to be in a contractual relationship with his employer the Crown, he may be dismissed at pleasure and no clause in the contract of employment purporting to fetter the right of the Crown to bring an end to the employment of a civil servant (whether with or without cause) is binding on the Crown." [206]
Lord Diplock delivering the judgment of the Privy Council in Kodeeswaran v. Attorney-General of Ceylon [1970] A.C. 1111 at page 1118 stated the rule:
"It is now well established in British constitutional theory, at any rate as it has developed since the 18th century, that any appointment as a Crown servant, however subordinate, is terminable at will unless it is expressly otherwise provided by legislation."
The question whether the Crown, in the light of the constitutional provisions relating to the Public Service Commission, still has the right to dismiss at will an officer who is subject to the commission's authority, has not been argued and does not fall to be decided in these proceedings.
Alteration of terms of service
Views have been expressed that the Crown has no power at common law to alter at will the terms of service of its servants. Brennan, J. in Director-General of Education v. Suttling [1987] L.R.C. (Const.) 1062, did not think that the Crown has such power. He said at page 1074):
"An unrestricted power to dismiss at will from the Crown's service does not import a power to reduce the position and salary of the Crown employee whose services are retained."
Roch, J. in R. v. Civil Service Appeal Board, ex parte Bruce [1988] 3 All E.R. 686 at pages 697, thought likewise:
"For the applicant it is submitted that the Crown cannot enter into a contract of employment with its servants because the Crown cannot divest itself of its prerogative powers, which include the power to alter at any time the terms on which its servants serve the Crown and the power to terminate such service at any time. Nor, it was argued, can the Crown fetter or restrict these prerogative powers. These powers stem from the constitutional principle that the Crown cannot limit its future executive actions. An agreement which can be altered or terminated by one of the parties to it, at will, was not a contract, because it did not create rights and obligation enforceable in the law courts of England and Wales.
For my part, I am not convinced that an `agreement' containing such terms would not amount to a contract in the legal sense. Even with such terms, the servant might be able to recover sums which had accrued due under primary obligations in the agreement prior to the alternation of the terms of the primary obligations or the termination of the contract by the Crown. Moreover, whereas [207] the decided cases establish beyond doubt the Crown's prerogative power to terminate the services of one of its servants instantly and at will, the decided cases do not establish, in my view, the existence of a prerogative power in the Crown to alter the terms of service of one of its servants at will, save in certain special cases such as the armed forces."
On the other hand, the Privy Council in its majority judgment in Hinds, Hutchinson, Martin, Thomas v. R. earlier cited, proceeded on the basis that the Parliament of Jamaica could by an ordinary law reduce the salary of a member of the lower judiciary during his continuance in office. That case arose out of the enactment in 1974 by the Parliament of Jamaica of the Gun Court Act, 1974 the purpose of which was, in the words of its long title "to provide for the establishment of a court to deal particularly with firearm offences and for purposes incident thereto or connected therewith." The court, called the Gun Court, in substance comprised three different courts, called "divisions", with differing status, a differing composition, differing jurisdiction and differing powers. The Act was challenged as being unconstitutional and Lord Diplock, delivering the majority judgment of the Board, had this to say about the Full Court Division (24 W.I.R. at pages 334 to 336):
Different considerations, however, apply to a `Full Court Division' of the Gun Court which exercises a jurisdiction intermediate between that of a Crown Court Division and a Resident Magistrate's Division. This is composed of three resident magistrates sitting together and acting by a majority . . . .
A Full Court Division is thus a new court in substance as well as form. Unlike a Circuit Court Division and a Resident Magistrate's Division it is of different composition from any previously existing court in Jamaica. Its jurisdiction too is different from that of any previously existing court. It does not extend to any capital offence but with this exception it extends to all firearm offences and to all other offences of whatever kind committed by detainees whether a firearm was involved in the offence or not, and its sentencing powers for such offences are co-extensive with those of a Circuit Court . . .
The attack upon the constitutionality of the Full Court Division of the Gun Court may be based on two grounds. The first is that the Gun Court Act, 1974 purports to confer upon a court consisting of persons qualified and appointed as resident magistrates a jurisdiction which under the provisions of Chapter VII of the Constitution is exercisable only by a person qualified and appointed as a judge of the Supreme Court. The second ground is much less fundamental. It needs only be mentioned briefly, for it arises only if the first ground fails. It is that even if the conferment of jurisdiction upon a Full Court Division consisting of three resident magistrates is valid, section 12 of the Constitution requires that any assignment of a resident magistrate to sit in that division [208] should be made by the Governor-General acting on the recommendation of the Judicial Service Commission and not by the Chief Justice as the Gun Court Act, 1974 requires.
Chapter V11 of the Constitution, `The Judicature', was in their lordships' view intended to deal with the appointment and security of tenure of all persons holding any salaried office by virtue of which they are entitled to exercise civil or criminal jurisdiction in Jamaica. For this purpose they are divided into two categories: (i) a higher judiciary consisting of judges of the Supreme Court and judges of the Court of Appeal (ii) a lower judiciary, consisting of those described in section 112 as `resident magistrate, judge of the Traffic Court, Registrar of the Supreme Court, Registrar of the Court of Appeal and such other office connected with the courts of Jamaica as, subject to the provisions of the Constitution, may be prescribed by Parliament'.
Apart from the offices of Judge and Registrar of the Court of Appeal which were new, these two categories embraced all salaried members of the judiciary who exercised civil or criminal jurisdiction in Jamaica at the date when the Constitution came into force. A minor jurisdiction, particularly in relation to juveniles, was exercised by justices of the peace but as in England, they sat part-time only, were unpaid and were not required to possess any professional qualifications.
Common to both categories, with the exception of the Chief Justice of the Supreme Court and the President of the Court of Appeal, is the requirement under the Constitution that they should be appointed by the Governor-General on the recommendations of the Judicial Service Commission - a body established under section 111 whose composition is different from that of the Public Service Commission and consists of persons likely to be qualified to assess the fitness of a candidate for judicial office.
The distinction between the higher judiciary and the lower judiciary is that the former are given a greater degree of security of tenure than the latter. There is nothing in the Constitution to protect the lower judiciary against Parliament passing ordinary laws (a) abolishing their office, (b) reducing their salaries while they are in office, or (c) providing that their appointments to judicial office shall be only for a short fixed term of years."
Their independence of the goodwill of the political party which commands a bare majority in the Parliament is thus not fully assured. The only protection that is assured to them by section 112 is that they cannot be removed or disciplined except on the recommendation of the Judicial Service Commission with a right of appeal to the Privy Council. This commission is a local body established under section 82 of the Constitution whose members are appointed [209] by the Governor-General after consultation with the Prime Minister and hold office for a period not exceeding three years.
In contrast to this, judges of the Supreme Court and of the Court of Appeal are given a more firmly rooted security of tenure. They are protected by entrenched provisions of the Constitution against Parliament passing ordinary laws (a) abolishing their office, (b) reducing their salaries while in office, or (c) providing that their tenure of office shall end before they attain the age of sixty-five years. They are not subject to any disciplinary control while in office. They can only be removed from office upon the advice of the Judicial Committee of Her Majesty's Privy Council in the United Kingdom given on a reference made upon the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth.
The manifest intention of these provisions is that all those who hold any salaried judicial office in Jamaica shall be appointed on the recommendation of the Judicial Service Commission and that their independence from political pressure by Parliament or by the Executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure of their office as is justified by the importance of the jurisdiction that they exercise. A clear distinction is drawn between the security of tenure appropriate to those judges who exercise the jurisdiction of the higher judiciary and that appropriate to those judges who exercise the jurisdiction of the lower judiciary."
On this reasoning their Lordships held that the provisions of the Gun Court Act, in so far as they provided for the establishment of a Full Court Division of the Gun Court consisting of three resident magistrates, conflicted with Chapter VII of the Constitution and were accordingly void. Lord Diplock contrasted the position of the judges of the Supreme Court and of the Court of Appeal with that of the lower judiciary in regard to the protection given by the Constitution against Parliament reducing their salaries while in office. In the same way, the position of the holders of offices specified in section 112(4) of our Constitution is to be contrasted with that of those, like the plaintiff, who hold public office within the purview of the Constitution but who do not hold section 112 offices. Section 112(3) and (4) enacts:
"(3) The salary and allowances payable to the holder of any office to which this section applies and his other terms of service shall not be altered to his disadvantage after his appointment and, for the purposes of this subsection, in so far as the terms of service depend upon the option of that person, the terms for which he opts shall be taken to be more advantageous to him than any other terms for which he might have opted. [210]
(4) This section applies to the offices of Governor-General, judges, Director of Public Prosecutions, Auditor-General, appointed members of the Judicial and Legal Service Commission and members of the Public Service Commission and the Police Service Commission."
These provisions are entrenched and cannot be altered by an ordinary law. In contrast, the holder of an office not specified in section 112(4) has no such protection and the inference is that the salary, allowances and other terms and conditions of service of the holder of such an office can be altered to his or her disadvantage after his or her appointment by an ordinary law. Moreover, section 2(1)(4) of the Civil Establishment Act (an "existing law" within the meaning of section 26 of the Constitution) enables the Minister to determine the emoluments attached to established offices in the public service, section 3 makes it clear that the emoluments attached to such an office may include salary on an incremental scale and section 2(5) confers on the Minister the power to vary an order made under the section.
The plaintiff holds an office established by such an order and the emoluments attached to her office were also fixed by such order. The earlier discussion of the word "vary" shows that it has a comprehensive meaning, which would include an increase or a decrease in salary as well as an alteration of the provisions relating to increments.
It seems to me impossible to resist the conclusion that the plaintiff would have had no ground for complaint if the reduction of her salary and the suspension of her increments had been effected by an order of the Minister pursuant to section 2, laid in Parliament and approved by a resolution of each House pursuant to section 2(4). But the variation of the plaintiff's emoluments was not effected by such an order but by the 1991 Act and Dr. Cheltenham submits that the difference is crucial because the 1991 Act is not an existing law and is in conflict with section 16 which, as part of the Constitution, must prevail because the Constitution is the supreme law. The 1991 Act, it is submitted, is void.
Before discussing this question, I think I must reproduce an extract from the opinion of the Privy Council in Thomas v. Attorney-General (1981) 32 W.I.R. 375. Lord Diplock who delivered the opinion said (at page 385):
". . . their lordships would point out that the constitutional doctrine of dismissibility of Crown servants at pleasure is, as a matter of legal theory, based upon an implied term in their contracts of employment. True, the implied term has the unique feature that it is treated as overriding even an express term to the contrary, unless the incorporation of such a term by the executive acting on behalf of the Crown, in entering into the contract, has been authorised by the legislature, i.e. the Queen in Parliament. Nevertheless, when the Crown summarily dismisses a Crown servant without needing to show any cause it does so in the exercise of a right conferred upon it as employer under the contract of employment which it has entered into with the servant." [211]
It seems to me that this passage gives a clear indication of the legal relationship that exists between the Crown and the plaintiff: she is a public officer under a contract of employment; and, if dismissibility of Crown servants at pleasure is based upon an implied term in their contracts of employment, it would seem logically to follow that this too is the legal basis supporting the Crown's power to vary her emoluments at will. In my view, the plaintiff is employed by the Crown under a contract of employment subject to an implied term which enables her emoluments to be varied by the Crown unilaterally. The critical question is whether the 1991 Act validly effected such a variation. Before discussing this I should reproduce section 26 of the Constitution.
Section 26 of the Constitution
Section 26 enacts:
"(1) Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 23 to the extent that the law in question
(a) is a law (in this section referred to as `an existing law') that was enacted or made before 30th November 1966 and has continued to be part of the law of Barbados at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent.
"(2) In subsection (1)(c) the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in subsection (1) `written law' includes any instrument having the force of law, and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly."
Is the 1991 Act constitutional
It is to be presumed that the 1991 Act is validly enacted by Parliament pursuant to section 48(1) of the Constitution for peace, order and good government. If it is to be held unconstitutional the plaintiff must show that it is. [212]
The contention is that it is unconstitutional because it is an ordinary law which is in conflict with a right in the plaintiff not to be deprived of emoluments payable under her contract of employment without compensation. The submission is that as an ordinary law it is in conflict with section 16(1) of the Constitution and must give way to the constitutional provision.
Earlier, I made reference to the decision of the Privy Council in Hinds, Hutchinson, Martin, Thomas v. R. (1975) 24 W.I.R. 326 where Lord Diplock contrasted the security of tenure of the lower judiciary in Jamaica with that of the higher judiciary. He noted that, whereas judges of the higher judiciary are protected by entrenched provisions of the Constitution against Parliament passing ordinary laws reducing their salaries while in office, there was nothing in the Constitution to protect the lower judiciary against Parliament passing ordinary laws reducing their salaries while they are in office.
In would seem to me, on analagous reasoning, that the protection given to section 112 office-holders by the entrenched provisions of the Constitution against alteration by an ordinary law of their salaries and other terms of service while in office when contrasted with the absence of like constitutional protection for those not holding section 112 offices, leads to the inference that Parliament can by an ordinary law alter the salary and other terms of service of those, like the plaintiff, who do not hold section 112 offices while they are in office. This is in consonance with the Civil Establishment Act the provisions of which give the Minister power by Order to determine the emoluments attached to established offices in the public service and to vary or revoke any such Order. Those constitutional arrangements would have been made against the background of these provisions.
Reilly v. R. [1934] A.C. 176 was of course concerned with a statutory abolition of office and a claim that arose therefrom for damages for breach of contract, but the closing paragraphs of the opinion of the Privy Council are not inapposite. Lord Atkin who delivered the opinion concluded in this way (at pages 180, 181):
"Finally, and almost inevitably in such a case, an appeal was made to the British North America Act, and it was said that legislation abolishing the office without compensation was an interference with property and civil rights. But as before, if the right was itself determinable by statute, there was no interference with it . . . . The case on this point may be put two ways. Either the Act of 1930 did not interfered with any civil right, or if it did, its interference was necessarily incident to the undoubted power of the Dominion to abolish the old and create the new office. For the reasons given above the former seems preferable, but either will suffice."
In this case the emoluments of the office held by the plaintiff were, from the time of her appointment, subject to variation by Order under section 2 of the Civil Establishment Act. The Constitution acknowledges that Parliament can alter her salary and other conditions of service by an ordinary law while in office. It is said that the Act of 1991 varying her emoluments without compensation is an [213] interference with her property rights. But if the right to her emoluments is itself variable by a competent enactment, and is so varied, there is no interference with it. On this reasoning, either the 1991 Act did not interfere with any property right of the plaintiff or, if it did, its interference was necessarily incident to the statutory power of the Crown to vary the emoluments of her office. To sum up, the Constitution contemplates that the plaintiff's salary and other terms of service can be altered to her disadvantage while in office by an ordinary law. Consequently, the 1991 Act is constitutional and does not deprive her of any right, or, if it does, the deprivation is necessarily incident to her contract of employment.
The defendant submitted that the 1991 Act, in so far as it affects the plaintiff, qualifies as an alteration or modification of an existing law within section 26(1)(c) and (2) of the Constitution and thus could not be in breach of section 16(1). This point was not argued in any depth and I do not express my opinion on it.
"Property of any description" in section 16(1) of the Constitution is to be read in a wide sense. It includes an action such as a debt owed by a banker to his customer: see per Lord Diplock in Attorney-General of the Gambia v. Momodou Jobe [1985] L.R.C. (Const.) 556 at p. 565. It would include the ordinary case of emoluments payable under a contract of employment. But it does not include emoluments to the extent that the right or entitlement to them is curtailed by an Act of Parliament which, far from being shown to be unconstitutional, seems to be within the boundaries of Parliament's constitutional powers.
In my judgment the second ground too must fail and accordingly the relief sought by the plaintiff is refused.
I must express my appreciation to counsel on both sides for the assistance they have given me in this difficult exercise. It is a case of great constitutional importance and the wealth of authorities produced is an indication of the research that went into its preparation. Such industry is to be commended.
Application dismissed. [214]
[Context] [Hide Context]
CommonLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.commonlii.org/bb/cases/BBSC/1992/1.html