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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 appellant appealed against the dismissal of her application by Willliams, J.
Held: (Husbands, J.A. dissenting): (i) that the 1991 Act was an effective exercise of the jurisdiction vested in Parliament to determine the emoluments attaching to offices in the public service. Section 112 of the Constitution which protected the salaries and terms of office of certain specified public officers) was inconsistent with the claim that all public officers were entitled to the protection expressly conferred by that section on specified office-holders (of whom the appellant was not one) and there was no implied term attached to service in public office that the emoluments attached to such office would never be reduced; [214]
(ii) that the appellant had no right to a minimum salary and accordingly no right protected by sections 11 or 16 of the Constitution; her only right was to the payment of such emoluments as the Minister under the Civil Establishment Act or as Parliament in the exercise of its legislative powers from time to time attached to her office. Her emoluments had been lawfully reduced by the 1991 Act.
Appeal dismissed.
Dr. F. Ramsahoye Q.C., Dr. R. Cheltenham Q.C.and P. Cheltenham for the appellant.
Hon. M. A. King Q.C., Mrs M. Crane-Scott, M. Taylor and J. Allsopp for the Attorney-General.
HUSBANDS, J.A.: Gladwyn Ophelia King, the appellant, is a clerical officer in the public service of Barbados. She was appointed to that office by the Governor-General acting in accordance with the advice of the Public ServiceCommission, established by section 90 of the Constitution of Barbados. The emoluments attaching to her office were fixed by Order made under the Civil Establishment Act, and set out in Schedule A to the Civil Establishment (General) Order, 1990 (the "1990 Order"). As from 1st October, 1991, her emoluments of $18,440.76 per annum were reduced by 8 per cent to $16,965.50 per annum by the Public Service Reduction of Emoluments Act, 1991.
The background
It appears from affidavits filed that in September 1991 [that] the Government of Barbados experienced certain difficulties with fiscal matters. A circular, dated 5th September, 1991, from the desk of the Permanent Secretary, Ministry of the Civil Service, under the subject heading "Agreement for Withholding of Part of the Emoluments of Permanent and Temporary Staff in the Public Service" was circulated among officers in the public service. The following extracts from the circular may provide some understanding of the background to this matter:
"I. This circular is intended to provide information on the current state of the Government finances which has made it imperative that assistance be sought from the International Monetary Fund (IMF) in the form of a standby arrangement to draw on our quota of resources in the Fund in order to stabilise the serious haemorrhage which has occurred in the foreign reserves of Barbados.
2. As all public servants must be aware, the Government has engaged in discussions with representatives of the IMF since early in July 1991, with a view to defining the scope and content of a programme of assistance from that organisation in support of our efforts to resolve the serious crisis in our economy. These discussions have now culminated in an agreed diagnosis of the nature of [215] the problem. The situation calls for a reduction in the deficit in the Government's accounts to an amount equivalent to 1 per cent of the gross domestic product (GDP) over the second half of the financial year, i.e. October 1991 to 31st March 1992. In short, what is called for is the implementation of measures which will reduce the deficit by $172.6 million. This reduction is projected to be achieved by raising new revenues of $56.6 million and reducing expenditure by $1156.0 million during this period.
3. The targeted reduction in expenditure will have to be achieved through savings in previously authorised outlays in the area of current expenditure . . . Regrettably, the savings of the magnitude mandated by the programme cannot be achieved without the reduction in the Government's wages bill which must necessarily involve cuts in the current level of emoluments and a release of some staff who are not employed in a permanent capacity.
4. The wages and salaries cut required has been calculated at approximately 8 per cent, across the board, and will have to be maintained over the period of implementation of the programme which has been estimated at eighteen months from 1st October 1991. . .
5. As you may also be aware, considerable discussion has taken place between representatives of various unions and staff associations which represent public employees on matters relating to conditions of service on whether an alternative course of action could have been possible. Those discussions gave long and earnest consideration of the feasibility of structuring an arrangement for treating any part of the emoluments withheld from employees as deferred payment which would have been secured by the issue of a bond. Regrettably, the size of the deferred payment which would have been necessary under such other arrangements to achieve the desired savings would have resulted in an impracticable scheme which would have been complicated to administer and unattractive to the participants. In the circumstances of the required level of the expenditure reduction, any further attempt to improve the attractiveness of the bond to prospective holders would have compromised the attainment of the savings target. The proposal cannot be effectively implemented and is no longer being pursued.
6. It is important to ask public employees to reflect at this time on the traditions which have been enshrined in the concepts of public service. These traditions call upon public servants to give of their best even in the most difficult circumstances. Public servants must show leadership by being prepared to accept an 8 per cent wage cut, rather than what would prove to be a more unpalatable alternative of a major devaluation, work reduction, staff reduction, and loss of general well-being through termination of services. The latter is an alternative which all Barbadians have said they wish to avoid . . . [216]
[Paragraph 7 omitted.]
8. It must be emphasised that the 8 per cent reduction in gross emoluments will not in any way affect the determination of the pension eligibility of any public officer.
[Paragraph 9 omitted.]
10. The Prime Minister has directed that this circular be reproduced by your Ministry/Department for each individual member of staff, who, upon reading the contents, should exercise his/her option and return the duly signed option form to you no later than 12th September 1991 for onward transmission to this Ministry by 13th September, 1991. It is imperative that these deadline dates be observed.
[Paragraphs 11 to 13 omitted.]"
The appellant saw the circular and duly exercised her option by indicating on the option form that she did not agree to the proposed 8 per cent reduction of her salary. However, the proposed reductions were effected by the passage of the Public Service Reduction of Emoluments Act, 1991 (the " 1991 Act"), which was assented to by the Governor-General on 23rd September, 1991, with a commencement date of 1st October, 1991. The relevant provisions of sections 4, 5, 6 and 7 of the 1991 Act are as follows:
"4. (1) In this Act, the `September 1991 rate' means the rate of emoluments that was, on 30th September, 1991, payable to the several persons or in respect of the several services set out in the First Schedule."
The appellant, as the holder of an office established by Order under the Civil Establishment Act was one of those persons. Section 4(2) reads:
"Notwithstanding anything in any enactment, contract, award or agreement, but subject to section 5, the rate of emoluments payable to an officer in the public service whose rate of emoluments is prescribed by an enactment set out in the Second Schedule or is otherwise calculated in accordance with such an enactment, . . . be 8 per cent less than the September rate."
The appellant was such an officer, her emoluments being prescribed by the Civil Establishment (General) Order, 1990 (the "1990 Order"), set out in Part 1 of the Second Schedule to the Act. Section 4(5) reads:
"For the purpose of giving effect to this Act, the September 1991 rates of emoluments payable to officers, whether those rates are (a) prescribed by the [217] enactments set out in Part 1 of the Second Schedule, or . . . shall be suspended, shall be of no effect and shall not be payable during the period 1st October, 1991 to 31st March, 1993, but the emoluments set out in the Third Schedule to the Thirteenth Schedule shall be paid instead thereof."
The appellant's reduced emoluments are set out in the Fifth Schedule. Section 4(7) and (8) and section 5(1) read:
"4. (7) Where an officer satisfied the requirements to proceed beyond a qualification bar established by or under an enactment, the officer's entitlement to so proceed shall be suspended during the period 1st October, 1991 to 30th September, 1993.
(8) No officer shall be entitled to, or shall be paid, an increment in his emoluments during the period specified in subsection (7).
5. (1) For the avoidance of doubt it is hereby declared that nothing in this Act shall apply to the holder of any office referred to in section 112 of the Constitution."
The section 112 offices referred to are the offices of Governor-General, judges, Director of Public Prosecutions, Auditor-General, appointed members of the Judicial and Legal Service Commission, the Teaching Service Commission, the Public Service Commission and the Police Service Commission. The Act continues:
"6. Notwithstanding anything in this Act, pensions and other retiring allowances of an officer that are based on his emoluments shall be calculated on the emoluments that would, but for this Act, have been payable to that officer.
7. (1) This Act shall come into operation on 1st October 1991, and subject to subsection (2) shall cease to have effect on 31st March, 1993.
(2) Section 4 (7) and (8) shall cease to have effect on 30th September, 1993."
The appellant was aggrieved by the reduction of her emoluments by the 1991 Act and, on 6th December, 1991 by originating notice of motion, made application under section 24 of the Constitution for redress as follows:
"(a) A declaration that the Public Service Reduction of Emoluments Act, 1991 contravenes section 16 of the Constitution of Barbados (which guarantees freedom from deprivation of property); [218]
(b) A declaration that the [appellant] is entitled to salary increments and other emoluments as if the said Act had not been enacted;
(c) An order that salary increments and other emoluments unpaid by reason of the enactment of the said 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) Such further or other relief including all orders and directions for accounts as may be just or appropriate;
(e) costs."
The grounds of the application were set out thus:
"I . The [appellant 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 [appellant] 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 said Act purports to authorise a reduction, deprivation or suspension of the [appellant'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 [appellant] without compensation of emoluments properly earned and/or due, owing and payable to her by the [Attorney-General] who is or who represents the Crown as employers in the public service and under her contracts or agreements of service and the terms and conditions of her appointment;
"3 . The said Act by depriving the [appellant] 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 of Barbados and in particular section 16 of the Constitution which protects the fundamental right and freedom expressed in section 11 of the Constitution 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 said Act contravenes section 16 of the Constitution it is unconstitutional, void and of no effect by reason of the provisions of section I of the Constitution of Barbados; [219]
5. The deprivation of emoluments has caused the [appellant] grave hardship and the [appellant] is seeking an urgent hearing of this motion to determine her rights."
The main plank of the appellant's complaint was that the 1991 Act compulsorily deprived her of her property, that is to say part of her emoluments, and made no provision for compensation, as is prescribed in section 16 of the Constitution.
In the determination of the matter Sir Denys Williams, C.J. held that the 1991 Act was constitutional (King v. Attorney-General (1992) 44 W.I.R. 52). In the course of his judgment the Chief Justice referred to a passage in the judgment of the Privy Council in Thomas v. Attorney-General (1981) 32 W.I.R. 373 at page 385, where Lord Diplock said:
" . . . 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."
The Chief Justice continued (44 W.I.R. at page 73):
"It seems to me that this passage gives a clear indication of the legal relationship that exists between the Crown and the [appellant]: 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 [appellant] 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."
Later in his judgment the Chief Justice said (at page 75):
"In this case the emoluments of the office held by the [appellant] 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 interference with her property rights. But if the right to her [220] 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 [appellant] 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 [appellant'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."
On appeal the following grounds were argued:
"I. The trial judge erred in law in rejecting the interpretation of section 94 of the Barbados Constitution contended for by the appellant and in not holding that the appellant could only suffer a reduction of salary and a suspension of increments through the intervention of the Governor-General acting on the advice of the Public Service Commission arising from the commission of a disciplinary offence on the part of the appellant.
2. That to the extent that the offices mentioned in section 112(4) of the Constitution of Barbados do not constitute a class within the meaning of the expression unius exclusio alterius principle of statutory interpretation, the trial judge erred in law in interpreting section 112 to mean that the office-holders not mentioned therein could suffer a reduction of their salary whilst in office and had no right to constitutional protection or legal redress.
3. The trial judge further erred in applying the provisions of the Civil Establishment Act in determining the issue as to whether the appellant was lawfully deprived of remuneration under her contract of service and/or within the terms and conditions of her appointment.
4. The trial judge erred in law in not holding that the reduction of the appellant's salary and the withholding of her increments constituted a confiscation of her property within the meaning of the provisions of section 16 of the Constitution of Barbados and was a breach of the said provisions.
5. The trial judge erred in law in following the obiter dictum of Lord Diplock in Hinds, Hutchinson, Martin, Thomas v. R (1975) 24 W.I.R. 326 in which it was said expressly that the Jamaican Parliament could by a simple majority alter the terms and conditions of service of members of the lower judiciary because they were outside the class of those constitutionally [221] protected from such alteration whilst in office by express provisions of the Constitution.
The trial judge ought to have held that observations of Lord Diplock were obiter and were made in a matter in which there was no argument concerning the meaning of the expression "appointment, removal and discipline" where it relates to public servants holding office under the Constitution and that the High Court of Barbados was not bound thereby."
Dismissibility at pleasure
If dismissibility at pleasure is an implied term of a public officer's contract of employment, it would appear that public officers in the past may have been remiss in not emphasising the high-risk nature of their employment when negotiating salaries and other conditions of service. Traditionally, strict equivalence with private sector emoluments has never been sought, but a discount applied in acknowledgement of the lower job security in private enterprise. However that may be, the concept of dismissibility at pleasure was canvassed during the argument of the case and it might be useful at this stage to consider its relevance to the appellant in the context of the Barbados Constitution.
Prior to Independence (30th November, 1966), the Constitution of Barbados, a settled Colony, was to be found in the Letters Patent passed under the great seal of the United Kingdom and the Royal Instructions passed under the royal sign manual and signet, with attendant conventions on the one hand and a number of local Acts of Parliament on the other. The Letters Patent dated 4th June, 1914, provided in clauses XVll and XVIII:
"XVII. The Governor may constitute and appoint all such judges, commissioners, justices of the peace, and other necessary officers and Ministers in the Island, as may be lawfully constituted or appointed by Us, all of whom unless otherwise provided by law, shall hold their offices during our pleasure.
XVIII. The Governor may, subject to such instructions as may from time to time be given to him by Us through one of our principal Secretaries of State, upon sufficient cause to him appearing, dismiss or suspend from the exercise of his office any person holding any public office within this Island, or, subject as aforesaid, may take such other disciplinary action as may seem to him desirable."
Between 1914 and 1964, certain constitutional advances in Barbados were brought about by amendment of existing laws and enactment of new legislation.
In 1949, the Civil Establishment Act, 1949, vested in the Governor-in-Executive Committee the power to establish by Order offices in the public service and to [222] determine the emoluments to be attached to such offices. The Order was provisional only until approved by a resolution of each House of Parliament.
In 1951, the Public Service Commission Act, 1951 was passed. It established a Public Service Commission whose function included advising the Governor on such matters as appointments, promotions, disciplinary control and dismissals of public officers as may have been referred to the commission by the Governor. The Act, however, made it clear that the Governor was not required to act in accordance with any advice so given. Also, Colonial Regulations, which were directions issued through the Secretary of State for the Colonies to colonial Governors, declared that appointments to public offices were made by the authority of Her Majesty and held during Her Majesty's pleasure (regulations 17 and 56).
In 1961, a number of Acts, including the Public Service Commission Act, 1961, the Judicial and Legal Service Commission Act, 1961, the Police Service Commission Act, 1961, the Attorney-General (Appointment, Conditions of Service and Dismissal) Act, 1961, the Auditor-General (Appointment, Conditions of Service and Dismissal) Act, 1961, were passed in Barbados heralding constitutional advancement. The Public Service Commission Act, 1961 repealed and replaced the 1951 Act and provided (inter alia) for the establishment of a commission whose members were appointed by the Governor for a term of three years. The power to make appointments to public offices and the power to dismiss and exercise disciplinary control over public officers was now vested in the Governor, acting on the recommendation of the commission; and the Interpretation (Amendment) Act, 1961 stipulated that where the Governor was required by law to act on the advice or recommendation of any person or authority -
"the Governor shall exercise those powers and perform those duties in accordance with the advice or recommendation of such person or authority; provided that before he acts in accordance with such recommendation he may, in his discretion, once refer that recommendation back for reconsideration by the person or authority concerned."
In 1961 the Letters Patent were amended in a number of significant ways to reflect these constitutional changes. A new clause XIIA was a inserted:
"The Governor shall, unless he has been authorised by one of our Principal Secretaries of State to assent thereto, reserve for signification of our pleasure any Bill which appears to him, according to his discretion -
. . . (c) to be in any way repugnant to or inconsistent with the provisions of any Act of the Island relating to - (1) the manner of selection and appointment of judges of the Supreme Court of the Island, the Attorney-General, the Auditor-General or members of the Public Service Commission, the Judicial and Legal Service Commission or the Police Service Commission; (2) the tenure of office of any of the persons mentioned [223] in the preceding paragraph or terms and conditions of their service; (d) to be in any way repugnant or inconsistent with the provisions of any Act of the Island or any agreement entered into by the Government of the Island with any other person or authority - (1) for safeguarding the functions and powers of the Public Service Commission, the Judicial and Legal Service Commission or the Police Service Commission: or . . ."
Clause XVII relating to the appointment of public officers, was revoked and replaced by the following:
"The Governor in our name and on our behalf, may constitute such officers for the Island as may lawfully be constituted by Us, and, subject to the provisions of these our Letters Patent and any other law for the time being in force in the Island, the Governor may likewise make appointments, to be held at pleasure, to any office so constituted."
Clause XVIII was amended to read:
"The Governor may, subject to the provisions of these our Letters Patent or any other law for the time being in force in the Island, upon sufficient cause to him appearing, dismiss or suspend from the exercise of his office any person holding any public office within the Island, or, subject as aforesaid, may take such other disciplinary action as may seem to him desirable."
A new Clause XVIIIA was also inserted relating to tenure of office of judge of the Supreme Court, providing that he might be removed from office only for inability to discharge the functions of his officer or for misbehaviour and in accordance with certain procedures. Clause XVIIIB provided for the appointment of a Cabinet.
Although the several amendments contained provisions concerning the method of appointment to and tenure of public offices, clause XVII of the Letters Patent made it abundantly clear that, subject to the Letters Patent and the law in force, these offices were "to be held at pleasure."
In 1963, the Director of Public Prosecutions Act, 1963 established the office of Director of Public Prosecutions and provided, as in the case of the Attorney-General and Auditor-General, that his emoluments "shall not be reduced during his continuance in office".
In 1964, the Barbados (Letters Patent, Consolidation) Order, 1964 (S.I.
1964 No. 491) [United Kingdom] consolidated the Letters Patent 1914 to 1961 and set out these provisions in Schedule 2 to that Order. In paragraph 31 of Schedule 2, dealing with Bills to be reserved, it was provided that (as in the case of the judges, the Auditor-General and the service commissions; the Attorney-General was no longer a public officer) any Bill appearing to be repugnant to or inconsistent with the provisions of the Director of Public Prosecutions Act or any agreement [224] safeguarding his functions or powers had to be reserved for the signification of Her Majesty's pleasure. In 1964 also, new Royal Instructions were issued to the Governor of Barbados. Reference to paragraph 7 of Schedule 2 to the Order and clause 13 of the new Royal Instructions is instructive. Paragraph 7 of Schedule 2 provided:
"Subject to the provisions of this Order and any other law, the Governor may constitute offices for the Island, make appointments to any such office and terminate any such appointment."
Clause 13 of the Royal Instructions read:
"Every appointment by or on behalf of the Governor to any office or employment shall, unless it is otherwise provided by law, be expressed to be during pleasure only."
These two provisions leave no room for doubt that in 1964, unless the law otherwise provided and subject to certain procedural formalities, appointments to public offices were to be at pleasure. On 30th November 1966, Barbados attained Independence. The Barbados Independence Order, 1966 (S.I. 1966 No. 1455) [United Kingdom] had appended as its Schedule the Independence Constitution of Barbados. Under section 4(3) of the Barbados Independence Order, 1966, the Existing Laws Order (No 2), 1967 (Legal Notice 168/1967), was made. Inter alia, it amended section 3 of the Civil Establishment Act, 1949 by substituting "Minister" for "Cabinet" as the authority to establish, by provisional Order, offices in the public service and to determine the emoluments of such offices. This provision, so amended, appears as section 2 in the Civil Establishment Act.
Section 90 of the Constitution provides for the establishment of a Public Service Commission and section 94 stipulates that power to make appointments to public offices, to remove and to exercise disciplinary
control over persons holding or acting in such offices is vested in the Governor-General, acting in accordance with the advice of the Public Service Commission. Section 101 of the Constitution provides for the Director of Public Prosecutions to be appointed by the Governor-General (acting on the recommendation of the Judicial and Legal Service Commission), and section 102 provides for the Auditor-General to be appointed by the Governor-General (acting on the recommendation of the Public Service Commission, after the commission has consulted the Prime Minister).
Section 112 of the Constitution re-enacted the provisions of the Auditor-General (Appointment, Conditions of Service and Dismissal) Act, 1961 and the Director of Public Prosecutions Act, 1963, safeguarding the salary and other emoluments paid to the Auditor-General and the Director of Public Prosecutions during their continuance in office and provided that the salaries, allowances and other terms of service of the Governor-General, judges, the Director of Public Prosecutions, [225] the Auditor-General and members of the services commissions might not be altered to their disadvantage after their appointment. These provisions are further protected by their entrenchment in Chapters VIII and IX of the Constitution, whose provisions may only be altered by a Bill supported by votes of no less than two-thirds of all the Members of each House of Parliament (section 49 of the Constitution).
These provisions were designed to ensure fearless performance by the designated office-holders, after appointment, of the several important constitutional functions entrusted to them.
And so, the Constitution protects the salaries, allowances and other terms of service of the officers specified. But what of other public officers appointed to offices established under the Civil Establishment Act? Are they left abandoned to the whims and fancies of their employer?
On Independence, section 2(1) of the Barbados Independence Order, 1966 revoked the Barbados (Letters Patent Consolidation) Order, 1964, and by so doing revoked any power remaining in the Governor to terminate at pleasure appointments in the public service. No such power was re-enacted and given to the Governor-General, or transferred to the services commissions by the Constitution. The Royal Instructions and Colonial Regulations being inapplicable to the Governor-General under the Constitution, public officers were thus freed from the "dismissible at pleasure" fetter and left to enjoy the protection of fundamental freedoms guaranteed to all in Barbados under the Constitution. One of these is the protection from deprivation of property entrenched in section 16 of the Constitution. I hold the view that when Barbados attained Independence in 1966 the concept of "dismissibility at pleasure" of public officers and any concomitant disability such as the Crown's power to reduce emoluments at will, which may be said to be attendant on that state, ceased to have any validity in Barbados. Further, I am of the view that no reasonable inference may be drawn that because section 112 of the Constitution affords specified public officers certain protection, all other public officers are without protection under the Constitution. In my opinion section 112 of the Constitution speaks specifically to the protection of salaries and allowances and other conditions of service of designated officers after appointment. Their other fundamental rights and the fundamental rights of all other public officers fall to be determined by the law of the land. And the Constitution is the supreme law of the land.
Before passing I should like to refer to illuminating passages that fell from Lord Diplock in Thomas v. Attorney-General (1981) 32 W.I.R. 373. One of the questions for decision in that case was whether the plaintiff, a police officer, was a Crown servant dismissible at pleasure under the written Constitution
of Trinidad and Tobago. Commenting on the protection given to the services commissions by Chapter VIII of the Trinidad and Tobago Constitution, Lord Diplock observed (at page 381):
"The whole purpose of Chapter VIII of the Constitution which bears the rubric `The Public Service' is to insulate members of the civil service, the teaching [226] service and the police service in Trinidad and Tobago from political influence exercised directly upon them by the Government of the day. The means adopted for doing this was to vest in autonomous commissions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and power to remove and exercise disciplinary control over members of the service."
On the issue of dismissibility at pleasure Lord Diplock said (at page 381):
"To speak of the right of the Crown to dismiss its servants at pleasure is to use a lawyer's metaphor to cloak a political reality. `At pleasure' means that the Crown servant may lawfully be dismissed summarily without there being any need for the existence of some reasonable cause for doing so; in other words `at whim': and `the Crown' in the context of the 1962 Constitution of Trinidad and Tobago meant the Governor-General who, in this regard, was required by section 63 of the Constitution to act in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet. Under a party system of government such as exists in Trinidad and Tobago and was expected to exist after Independence in other Commonwealth countries whose Constitutions followed the Westminster model, dismissal at pleasure would make it possible to operate what in the United States at one time became known as the `spoils' system upon a change of Government, and would even enable a Government, composed of the leaders of the political party that happened to be in power, to dismiss all members of the public service who were not members of the ruling party and prepared to treat the proper performance of their public duties as subordinate to the furtherance of that party's political aims. In the case of an armed police force with the potentiality for harassment that such a force possesses, the power of summary dismissal opens up the prospect of converting it into what in effect might function as a private army of the political party that had obtained a majority of the seats in Parliament at the last election. Their lordships do not suggest that there is any likelihood of any of these extreme consequences of the existence of a legal right of summary dismissal without cause occurring in Trinidad and Tobago; but what has actually happened in some other countries suggests that the possibility of their occurrence was not too far-fetched to justify the Constitution-makers in the 1960s making provision to eliminate any such risk in Constitutions which follow the Westminster model."
And at pages 384, 385:
"Before this Board the Attorney-General has not sought to argue that, after the 1962 Constitution had vested in the Police Service Commission the power to remove police officers, the Governor-General acting on behalf of the Crown but on the advice of the Cabinet retained any concurrent power to dismiss them [227] either with or without reasonable cause. Retention of a power in the Government to dismiss police officers without the need for showing any reasonable cause would enable it to render abortive the exercise also by the commission of its functions of appointing, promoting and transferring members of the police force, since the Governor-General could by this means terminate immediately appointments made by the commission of any persons of whom the government of the day did not approve.
The way the argument for the Attorney-General was put before this Board was that, in the case of police officers, the exercise of the right of the Crown to dismiss its servants at pleasure was merely transferred by section 99(1) of the Constitution from the Governor-General to the Police Service Commission and was embraced in the power to `remove' from office that became vested in them by that section.
If supplementary reasons for rejecting the construction sought to be placed on section 99(1) by the Attorney-General were needed, 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. The Police Service Commission does not by section 99 replace the Crown as employer of police officers; the definitions of `public office', `public officer' and `public service' in section 105(1) rule this out.
So when the commission `removes' a police officer under section 99 it is exercising a function newly-created by that section: there are not vested in it any contractual rights that it is capable of exercising as a party to the contract of employment of the police officer.
It may be worthwhile adding as a footnote that even under the successive pre-Independence Constitutions of Trinidad and Tobago between 1924 and 1950, the power of dismissal of Crown servants in the Colony that was delegated to the Governor by the Royal Letters Patent was not the unfettered power to dismiss at pleasure but was restricted to dismissal `upon sufficient cause to him appearing'. Although the Governor's decision as to what amounted to sufficient cause in the individual case was not open to judicial review, these Royal Instructions justify the declaration in section 1 of the 1962 Constitution [228] that the right of the individual to equality of treatment from any public authority in the exercise of any functions had already existed in Trinidad and Tobago, so far as the dismissal of public officers was concerned. Their lordships accordingly answer question (3) in the negative: the survival of the historic legal doctrine of dismissibility at pleasure of police and other public officers was inconsistent with the 1962 Constitution of Trinidad and Tobago and remains inconsistent with its present Constitution as a Republic."
These passages further confirm me in the opinion that, under the Independence Constitution of Barbados, the concept of the dismissibility at pleasure of public officers is no longer tenable. Further, there seems to me no basis of support for the contention that in public officers' contracts of employment there is to be implied a term enabling the Crown unilaterally to vary the emoluments of appointed officers to their disadvantage.
The 1991 Act and the Civil Establishment Act
It is common ground that money is property; that the Civil Establishment Act is an existing law under section 26(1)(a) of the Constitution; and that the 1991 Act is an ordinary Act not having been passed by the two-thirds majority of votes in each House of the legislature prescribed by section 49(2) of the Constitution. These matters notwithstanding, one of the arguments for the validity of the 1991 Act is based on section 2 of the Civil Establishment
Act. This section provides (inter alia):
"(1) The Minister may from time to time by Order -
(a) establish offices in the public service; . . .
(d) determine the emoluments to be attached to such offices and . . .
(2) An Order under subsection (1) 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 [229] 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: . . .
(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."
It is argued that the power to vary includes a power to reduce, and so the Minister is empowered under the section to reduce the emoluments of the said offices. As a consequence, since his emoluments are subject to reduction following Ministerial Order, a public officer has no absolute right to the emoluments attaching to his office and therefore cannot complain of being deprived of that right. Further, if he is deprived of part of his emoluments by an ordinary Act, he has no ground for complaint since the Act has done no more than may have been done following Ministerial Order under the Civil Establishment Act.
In my view, this contention seems flawed in many respects. In the first place, I am hesitant in the belief that it could be argued successfully (and this point has not been argued) that, any power a Minister may have under the Civil Establishment Act to reduce by Order the emoluments attaching to established offices, includes a power unilaterally to reduce to their disadvantage the emoluments of officers after their appointment, especially when regard is had to paragraphs 9 and 10 of the Civil Establishment (General) Order, 1990 (the "1990 Order"), to which I will refer later. But even if such a reduction were legally valid when authorised by the process of Ministerial Order under the Civil Establishment Act (an existing law), there is no support for the contention that, because of this and notwithstanding the Constitution, a similar reduction without compensation may be validly achieved by an ordinary law, like the 1991 Act.
I am persuaded to this view by Bribery Commissioner v. Pederick Ranasinghe [1964] UKPC 1; [1964] 2 W.L.R. 1301. I read from the headnote:
"Members of a panel from which the personnel of the Bribery Tribunals in Ceylon are to be selected hold, when sitting in the tribunal, judicial office and provision in section 41 of the Bribery Amendment Act, 1958 for their appointment by the Governor-General on the advice of the Minister of Justice is in conflict with the requirement in section s. 5 of the Ceylon (Constitution) Order in Council, 1946, that `appointment . . .' of judicial officers is hereby vested in the Judicial Service `Commission'. Once it is shown that an Act [230] conflicts with a provision in the Constitution the certificate of the Speaker under the proviso to section 29(4) of the Constitution is an essential part of the legislative process. There was no certificate in the case of the Bill of 1958."
In delivering the judgment of their lordships Lord Pearce said (at page 1310):
" . . . a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is `uncontrolled', as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of a majority or by a different legislative process."
In Barbados, the provisions for the protection from deprivation of property guaranteed by section 16 of the Constitution may be altered by a Bill supported by a two-thirds majority as prescribed by section 49(1) of the Constitution. More specifically, in the circumstances of this case, the emoluments attaching to established offices may be varied by a special process of Ministerial Order made pursuant to the provisions of the Civil Establishment Act, an existing law under the Constitution. The 1991 Act has none of these attributes.
Another matter considered was whether the 1991 Act alters the 1990 Order and the Civil Establishment Act, as is provided in section 26(1)(c) and (2) of the Constitution. I do not think it does. That section stipulates:
"(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...
(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 the 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) [231] `written law' includes any instrument having the force of law, and in this subsection and subsection (1) references to repeal and reenactment of an existing law shall be construed accordingly."
Examination of the relevant provisions of the 1991 Act as it relates to the appellant may assist in this regard. The long title reads "An Act to provide for a reduction in the emoluments of public officers and other employees in the public service and related bodies"; the term "public service" is defined to include corporate and other bodies and persons other than the holders of public office, and the Act, (by section 3) is made to apply to members of Parliament, ambassadors, the staff of statutory boards and a category of services and persons far wider in scope than the holders of offices established by Order under the Civil Establishments Act. Section 4(1) and (2) of the 1991 Act provides that the emoluments payable to the appellant, as prescribed in the 1990 Order, "shall be 8 per cent less than the September rate". Section 4(5) enacts that the emoluments attached to her office by the 1990 Order "shall be suspended, shall be of no effect and shall not be payable during the period 1st October, 1991 to 31st March, 1993 ", but that she shall be paid instead thereof the reduced emoluments set out in the Fifth Schedule. Section 4(7) and (8) provides that the appellant's entitlement to proceed beyond a qualification bar and her entitlement to increments will be suspended from 1st October, 1991 to 30th September, 1993, on which date the subsections cease to have effect. Section 7 provides (inter alia) that the Act will cease to have effect on 31st March, 1993. Section 6, however, contains a very significant provision. It reads:
"Notwithstanding anything in this Act, pensions and other retiring allowances of an officer that are based on his emoluments shall be calculated on the emoluments that would, but for this Act, have been payable to that officer."
Accordingly, for pensions purposes, the emoluments of the appellant's office are those set out in the 1990 Order. Consequently, her pension will be calculated by reference to that Order, no attention being paid to the suspended increments or the temporarily reduced salary she actually received during the life of the 1991 Act. Similarly, the appellant's reduced emoluments, although quantified in the Fifth Schedule, are calculated by reference to the emoluments of her office set out in the 1990 Order.
In my view the Civil Establishment (General) Order, 1990 remains alive. The effect of the 1991 Act was to authorise the withholding of a percentage of the emoluments attaching to her office by that Order. This withholding was of a temporary nature and ceased to have effect on 31st March, 1993, after which the appellant becomes entitled to receive again the full emoluments set out in the Order; also her incremental allowances entitlement under the Order recommences on 1st October, 1993 automatically and without further legislative intervention. [232]
In my opinion these withholding impositions do not constitute an alteration of the Civil Establishment Act within the contemplation of section 26 of the Constitution.
If, however, I am wrong, consideration must be given to the provisions of paragraphs 9 and 10 of the 1990 Order which state:
"9. Subject to paragraph 10, this Order does not apply to any person who at the date of its publication in the Official Gazette is the holder of an office established by the former Order and by this Order, and who not later than three months after that date, or within such further period as the Permanent Secretary, Ministry of the Civil Service, in any special case allows, gives the Permanent Secretary, Ministry of the Civil Service, a notice in writing of a desire to be exempted from the provisions of this Order.
10. Notwithstanding this Order, where a notice is given under paragraph 9, the person by whom the notice is given is, during such time as that person continues in the office held at the date of giving of the notice, entitled to enjoy the rights, and is subject to the terms, conditions and liabilities, applying to that office before the commencement of this Order."
I note in passing that similar provisions are common to Civil Establishments General) Orders from as early as the Civil Establishment (General) Order, 1956 (Legal Notice III of 1956) when that Order was made by the Governor-in-Executive Committee.
These provisions make it clear that, whereas section 2 of the Civil Establishment Act authorises the variation of emoluments attaching to established offices, the holders of these offices have the right to opt, within a specified period, to be exempt from the provisions of the Order and to remain in continued enjoyment of their erstwhile rights and conditions, so long as they continue in the said offices.
It would seem to me that the said provisions (i.e. paragraphs 9 and 10 of the 1990 Order) would also apply where the emoluments set out in the 1990 Order are altered by the 1991 Act. The appellant would thereby be afforded the right to exercise an option. And it will be recalled that the appellant duly notified in an option form that she did not agree to the proposed reduction of her salary.
If on the other hand paragraphs 9 and 10 of the 1990 Order are not applicable to alterations of the 1990 Order effected by the 1991 Act, I would hold that the 1991 Act, in so altering the 1990 Order, renders it inconsistent with the provisions of section 16 of the Constitution "in a manner in which, or to the extent to which, it was not previously so inconsistent" (section 26(1)(c) of the Constitution).
The 1991 Act: does it offend?
Section 48(I) of the Constitution enacts that the power of Parliament to make laws [233] for the peace, order and good government of Barbados is subject to the provisions of the Constitution. The 1991 Act is therefore made subject to the provisions of the Constitution, section 16 of which provides in part:
"(I) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law, and where provision applying to that acquisition or taking 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, either directly or by way of appeal, for the determination of his interest in or right over the property and the amount of compensation, to the High Court.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section - (a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property - (i) in satisfaction of any tax, duty, rate, cess or other imposts; (ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law; (iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge, contract, grant, permission or licence; . . ."
The question arising is whether, in the circumstances of this case, the 1991 Act, by authorising the withholding of 8 per cent of the appellant's emoluments for a period of eighteen months and suspending her incremental entitlement until 1st October, 1993 without making provision for compensation, offends against the Constitution and in particular the "protection from deprivation of property" in section 16.
Norton v. Public Service Commission [1988] L.R.C. (Const.) 944 is instructive on the scope of the provisions in the "Protection from deprivation of property" section of the Mauritius Constitution. Under section 89 of that Constitution, the Public Service Commission was given power, subject to the Constitution, to appoint persons to hold or act in offices in the public service and to exercise disciplinary control over and remove such persons from office. Section 118 of the Constitution provided that the Public Service Commission might, by regulations, make provision for regulating or facilitating the performance by the Commission of its functions under the Constitution. Regulation 41(1), made pursuant to that power, read "The following punishments may be inflicted on any public officer as a result of proceedings under this Part . . . (h) fine;".
Following the taking of disciplinary proceedings, the Public Service Commission imposed a fine on an officer. The officer sought an order of certiorari to quash the order imposing the fine, alleging that it was contrary to the Constitution, section 8(1) of which gave protection against the deprivation of property and provided that [234]
"No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired"
except as provided in the subsection. Also, section 8(4) provided:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (I) - (a) to the extent that the law in question makes provision for the taking of possession or acquisition of property . . . (ii) by way of penalty for breach of the law or forfeiture in consequence of a breach of the law . . . (iv) in the execution of judgments or order of courts . . ."
Delivering the advice of the Board, Lord Ackner said (at page 947):
"The powers of the commission are derived, not from the regulations but from the Constitution itself. The Public Service Commission has no more power than that conferred upon it by the Constitution. As was pointed out by Ahnee, J., in his dissenting judgment, whatever in the past, when Mauritius was a British Colony, may have been the powers of the then Governor over Her Majesty's civil servants, cannot be of any assistance in defining the powers conferred upon the Public Service Commission by the Constitution. Section 8(1) and (4) of the Constitution makes it clear that there is no power to fine, unless there exists a law which gives power to impose a fine for a breach of that law. Before such a fine can be enforced, the breach of that law has to be established in the courts. Accordingly, it must follow that the power given to the Public Service Commission to `exercise disciplinary control' does not include the power to inflict a fine. In the result, regulation 51(1), in so far as it provides for punishment by the infliction of a `fine' is ultra vires the Public Service Commission.
Accordingly, their lordships will humbly advise Her Majesty that the appeal ought to be allowed and that the order of certiorari should issue."
What was said in Inland Revenue Commissioner v Lilleyman (1964) 7 W.I.R. 496, a case from the British Caribbean Court of Appeal, is equally instructive. Article 61 of the Constitution of British Guiana provided:
"Subject to the provisions of this Constitution, the Governor may with the advice and consent of the Senate and the Legislative Assembly make laws for the peace, order and good government of British Guiana."
Article 12(1) of the Constitution prohibited the compulsory acquisition of any interest in or right over property of any description, and provided that no such [235] property might be compulsorily taken possession of, except by or under the authority of a written law and when provision applying to that acquisition or taking possession was made by such a law requiring (inter alia) prompt payment of adequate compensation. Article 12(3) provided that, subject to paragraph (5), nothing in the article should be construed as affecting the making or operation of any law so far as it provided for the acquisition or taking possession of property in satisfaction of a tax, rate or due, etc.
In 1962 the National Development Savings Levy Ordinance was passed. Its object was to provide for the levy of compulsory savings to be used for development works and for the issue of bonds therefor, the payment of interest and prizes in respect thereof and their redemption. Section 6 of the Ordinance authorised the charge and collection of a levy at specified rates on the emoluments of residents in British Guiana; section 13 made provision for employers to deduct or withhold from emoluments paid to their employees an amount in respect of the levy and for the payment of the same to the Commissioner of Inland Revenue.
Certain employees of a company from whose emoluments deductions were made under the Ordinance, issued a writ against the Commissioner of Inland Revenue and their employers (the Attorney-General was subsequently joined as a defendant by order of the court), questioning the validity of the Ordinance on the ground that its enactment contravened the provisions of article 12(1) of the Constitution. It was held on appeal (inter alia) (see the headnote) that:
"the power to legislate for the peace, order and good government of the country does not authorise the enactment of a law which contravenes the provisions of the Constitution which gives such power, even though such a law has been duly passed by the Legislature;
money was property within the meaning of article 12(1) of the Constitution;
the levy under the National Development Savings Levy Ordinance, 1962 is in the nature of a forced loan, and is neither a tax nor a due, and therefore is not protected by article 12(3)(a) of the Constitution; the Ordinance is consequently ultra vires the Legislature."
The main issue in that case was whether the Ordinance offended against the provisions of the Constitution for the protection against deprivation of property without compensation. Having found that the levy was not a tax or due protected by article 12(3), Archer, P. said (at page 524):
"Article 12(1) itself is so worded as to shield against deprivation the whole bundle of rights which constitutes property and to comprehend property in its widest connotation. Every description of interest in, or right over, property, which is itself property, is protected against deprivation without compensation by acquisition or the taking of possession unless the deprivation is authorised under article [236] 12(3). The subject matter of article 12(1) cannot be limited to corporeal property, nor possession to physical possession and money and choses in action are therefore not excluded.
The respondents had a right to the immediate enjoyment of their full emoluments which, but for the levy imposed by the Ordinance, they would have received, and I entertain no doubt that the Ordinance which violates their rights of property was not within the power of the British Guiana legislature to enact."
These cases are persuasive and compelling authorities that under a written Constitution such as ours, if property is compulsorily acquired or taken possession of, existing laws apart, otherwise than in accordance with the provisions of section 16 of the Constitution, such act will be declared ultra vires.
However, a further argument of the Attorney-General in response to the challenge to the validity of the 1991 Act is that what it authorises falls within the exemption in section 16(2)(a)(iii) of the Constitution. The Attorney-General draws attention to that part of the judgment of Sir Denys Williams, C.J., already quoted (King v. Attorney-General (1992) 44 W.I.R. 52), where he said (at page 75):
"It is said that the Act of 1991 varying her emoluments without compensation is an 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 [appellant] 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 [appellant'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 Attorney-General contends that 8 per cent of the appellant's salary is being taken possession of as an incident of her contract of employment. He cites Ooi Boon Leong v. City Bank [1984] 1 W.L.R. 723 on the interpretation to be given to the expression "incident of a contract". There, in delivering the advice of the Privy Council Lord Brightman said (at page 729):
"Their Lordships reject the argument based upon section 1(2). An incident of the contract is to be distinguished from a term of the contract agreed by the parties. By an `incident' of a contract is meant a legal consequence of the contract which flows from the existence of the contract although the parties have not in terms expressly provided for it and may not have addressed their minds to it. For example, if X for good consideration promises to pay £100 to Y at a future date, it is an incident of that contract that, if X dies before the [237] date for payment, his personal representatives are liable in his place to the extent of the available assets of his estate although the contract does not so provide. Or if X employs Y to be his agent in money matters, it is an incident of the contract that Y must account to X for his dealing with such money although the contract does not so state. But all such incidents of a contract, the legal consequences which flow from the contract at common law, can be overridden by the agreed terms of the contract unless a statute or the common law otherwise provides. In the first example, the contract may provide that X's estate is not to be liable if X dies before the date of payment. In the second example, the contract may provide that X is not entitled to require Y to account for dealings which took place more than two years ago."
The Attorney-General argues in this case, that the reduction of the appellant's salary was an incident of her contract, in that it was a legal consequence arising out of the power of the Minister, by Order, unilaterally to vary her salary to her disadvantage under the Civil Establishment Act, although neither the appellant nor her employers, as parties to her contract, may have addressed their minds to that possibility. Counsel for the appellant refutes this. He contends that assuming, although not admitting, that such a Ministerial power exists, this would amount to a term of employment and would not be a legal consequence or incident of a contract as prescribed in section 16(2)(a)(iii) of the Constitution referred to earlier.
On a reading of the judgment I have grave doubts that the expression "incident to her contract" was used by Sir Denys Williams, C.J. in the context of what is enacted in section 16(2)(a)(iii) of the Constitution. In any event, in my view the 1991 Act as enacted does not "make provision for the taking of possession or acquisition" of 8 per cent of the appellant's salary "as an incident of a contract" and therefore does not fall within the section 6(2)(a)(iii) exemption.
For the reasons stated, I have reached the conclusion that - (i) the 1991 Act is an ordinary Act, which makes no provision for compensation, as is prescribed by section 16(1) of the Constitution, in respect of the compulsory taking or acquisition of property or interest in or right over property of any description; (ii) the 1991 Act does not fall within the scope of section 16(2)(a)(iii) of the Constitution; (iii) the 1991 Act is not saved by section 26(1)(c) of the Constitution; (iv) the appellant's emoluments, interest in and right over the same are property within the protection of section 16 of the Constitution; (v) the appellant had a right to the enjoyment of her full emoluments as prescribed by the Civil Establishment (General) Order, 1990, which but for the imposition of the 1991 Act she would have received; and (vi) the 1991 Act deprives the appellant of her said property, contrary to the provisions of the Constitution and, in so far as it does, violates her rights and is ultra vires.
I am of opinion that the desired reduction of emoluments may have been validly achieved by other legislative measures but its achievement by the 1991 Act is for the reasons given unconstitutional. In the result I hold that the appellant is entitled [238] to succeed on the grounds 2 and 4 argued in her appeal, which I would allow with costs.
I cannot part with this appeal without expressing my indebtedness to Dr. Ramsahoye on the one hand and to the Attorney-General on the other for the commendable lucidity with which they presented informed arguments to this court on a matter not without complexity and fundamental constitutional significance.
MOE, J.A.: This appeal is from the judgment of Sir Denys Williams, C.J. upon an application by the appellant for constitutional redress (King v. Attorney-General (1992) 44 W.I.R. 52). In the High Court she sought relief based upon the fundamental right to protection from deprivation of property as provided for in section 16 of the Constitution of Barbados.
The appellant is a public officer having been appointed with effect from 1st August, 1989 to an office established under the Civil Establishment Act. 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. It also gives the Minister power to vary or revoke an Order determining the emoluments to be attached to established offices. Under that Act emoluments on an incremental basis are attached to the office which the appellant holds. In 1991 Parliament enacted the Public Service Reduction of Emoluments Act, 1991 (hereafter called the "1991 Act"), by which the rate of emoluments attaching to the office held by the appellant were reduced from 1st October, 1991 until 31st March, 1993 and with no increments between 1st October, 1991 and 30th September, 1993.
By notice of motion dated 6th December 1991 the appellant sought:
"(a) A declaration that the 1991 Act contravenes section 16 of the Constitution . . .
(b) A declaration that [the appellant] is entitled to salary increments and other emoluments as if the said Act had not been enacted;
(c) An order that salary, increments and other emoluments unpaid by reason of the enactment of the said Act be paid with interest for such period as payment is in arrears down to the date of actual payment at such rate as may be appropriate;
(d) Such further or other relief including all orders and directions for accounts as may be just or appropriate;
(e) Costs."
She gave notice that the grounds of the application were as follows: [239]
"I. The [appellant] 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 [appellant] has rendered the required services and has thereby earned and continues to earn her agreed emoluments under her appointment and contracts of service;
2. The said Act purports to authorise a reduction, deprivation or suspension of the [appellant'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 [appellant] without compensation of emoluments properly earned and/or due, owing and payable to her by the [Attorney-General] who is or who represents the Crown as employers in the public service and under their contracts or agreements of service and the terms and conditions of her appointment;
3. The said Act by depriving the [appellant] 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 of Barbados and in particular section 16 of the Constitution which protects the fundamental right and freedom expressed in section 11 of the Constitution 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 said Act contravenes section 16 of the Constitution it is unconstitutional, void and of no effect by reason of the provisions of section 1 of the Constitution of Barbados.
5. The deprivation of emoluments has caused the [appellant] grave hardship and the [appellant] is seeking an urgent hearing of this motion to determine her rights."
Sir Denys Williams, C.J. in his judgment stated (at page 73):
"In my view the [appellant] 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."
He also later stated (at page 74):
"It would seem to me, on analogous reasoning, that the protection given to section 112 office-holders by the entrenched provisions of the Constitution [240] 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 [appellant], 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."
He concluded that the 1991 Act was constitutional and did not deprive the appellant of any right or, if it did, the deprivation was necessarily incident to her contract of employment. The Chief Justice accordingly refused the relief sought and dismissed the application.
Before us counsel for the appellant submitted that (1) no authority exists or has ever existed for an implied term that the contractual salary of a public officer could be unilaterally reduced pursuant to a prerogative power; (2) the Constitution of Barbados has no provision leading to an inference that Parliament may simply take away emoluments of a public officer; section 16(2) of the Constitution determines the circumstances in which such a taking is possible and the appellant's case does not fall within them; (3) for an enactment to provide for a reduction of emoluments contractually earned, it would be obliged to say so expressly and where the enactment is passed after the date of Independence, it must do so in accord with the provisions of section 16(1) of the Constitution, unless circumstances exist in which the provisions of section 16(2) thereof can be relied upon: and (4) the 1991 Act was not validly passed since it made for a simple taking of the appellant's emoluments without provision for compensation.
The provisions of section 16 of the Constitution with which we are concerned in this appeal are as follows:
(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law and where provision applying to that acquisition or taking 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, either directly or by way of appeal, for the determination of his interest in or right over the property and the amount of compensation to the High Court.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section - (a) to the extent that the law in question makes provision for the taking of possession or acquisition [241] of any property - . . . (iii) as an incident of a lease, tenancy, mortgage, charge, bill of sale, pledge, contract, grant, permission or licence."
The 1991 Act in so far as is here relevant is as follows:
"An Act to provide for a reduction in the emoluments of public officers and other employees in the public service and related bodies.
4. (2) Notwithstanding anything in any enactment, contract, award or agreement, but subject to section 5, the rate of emoluments payable to an officer in the public service whose rate of emoluments
(a) is prescribed by an enactment set out in the Second Schedule or is otherwise calculated in accordance with such an enactment,
(b) is specified in the Schedule to Resolution No. 65/1990 or No. 67/1990, or
(c) is calculated or determined in any other manner
shall be 8 percent less than the September 1991 rate.
" (5) For the purposes of giving effect to this Act, the September 1991 rates of emoluments payable to officers, whether those rates are
(a) prescribed by the enactments set out in Part I of the Second Schedule, or
(b authorised by the Resolutions set out in Part II of the Second Schedule,
shall be suspended, shall be of no effect and shall not be payable during the period 1st October 1991 to 31st March 1993, but the emoluments set out in the Third Schedule to the Thirteenth Schedule shall be paid instead thereof.
(8) No officer shall be entitled to, or shall be paid, an increment in his emoluments during the period specified in subsection (7).
(9) The emoluments set out in the second column of the Fifth Schedule opposite the code number appearing in the first column of that Schedule shall be the emoluments attached to the office specified in the first column of Schedule A of the Civil Establishment (General) Order, 1990 opposite to which in the second column of the said Schedule A the same code number appears, and such emoluments shall, during the period specified in subsection (5), be payable to every officer holding such office." [242]
The crucial issue for determination is whether property was taken from the appellant. Her contention is that the property taken is the right to certain emoluments for the period concerned.
The Chief Justice said in his judgment (44 W.I.R. at page 75):
"`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 Lord Diplock in Attorney-General of the Gambia v. Momodou Jobe [1985] L.R.C. (Const.) 556 at page 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."
Earlier (also on page 75) the Chief Justice stated:
"In this case the emoluments of the office held by the [appellant] 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 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 [appellant] 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 [appellant'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."
Before this court, counsel for the appellant made it clear that the appellant does not question that there is power given to the Minister under the Civil Establishment Act to vary the emoluments of public officers: that variation of the emoluments of public officers, such as the appellant (not covered by section 112(4) of the Constitution), may be effected by an ordinary law, but the appellant maintains that such a law must have a provision for compensation. It was stated that if pursuant to the power given under the Civil Establishment Act the Minister had by Order varied the emoluments and the necessary affirmative resolution had been obtained, there would not have been the present constitutional issue, the issue would have been whether the Order could apply to serving officers. The appellant's position then is that, the Public Service Reduction of Emoluments Act, 1991 not [243] having been made pursuant to the power given under the Civil Establishment Act, must be tested without reference to the latter Act to see whether it conflicts with section 16 of the Constitution.
The submission on behalf of the appellant was that by virtue of the provisions of the 1991 Act if a public officer works and becomes entitled to an emolument he/she does not get all of the money due but 8 per cent less. The contention is, that the 1991 Act did not change or touch the salary structure attaching to the offices but that wherever an officer may be within the salary structure, if he works in pursuance of his contract, he would not get all the money which is due under the contract but 8 per cent less for eighteen months and thereafter it would be restored.
Great reliance was placed on Inland Revenue Commissioner v. Lilleyman (1964) 7 W.I.R. 496. In that case, the British Caribbean Court of Appeal was concerned with an Ordinance passed in British Guiana which made provision for employers to deduct or withhold from emoluments paid to their employees an amount in respect of a levy which the government sought to make provision for, to be utilised for works of development in British Guiana, for the issue of bonds therefor, payment of interest thereon and prizes with respect thereto and for the redemption thereof. Consideration was given to article 12 of the Constitution of British Guiana, which was in terms similar to section 16 of the Constitution of Barbados. The court took the same view as Sir Denys Williams, C.J. in the instant case: that "property" in such a provision is of the widest import and contemplates property in the most general sense. Archer, P observed that "the respondents [i.e. the employees] had a right to the immediate enjoyment of their full emoluments which but for the levy imposed by the Ordinance, they would have received . . ." The deduction or withholding from emoluments paid was held to be in the nature of a fixed loan and was neither a tax nor a due and therefore was not protected by the relevant provision of section 12 of the Constitution of British Guiana.
The Attorney-General submits that after the right to emoluments has been curtailed by Parliament an officer cannot make a claim for emoluments to which he would have been entitled before that right had been curtailed. That the Civil Establishment Act (an existing law which provides for the variation of the emoluments of public officers, including the appellant) has the effect of providing that the public officer has no right not to have the emoluments varied; in other words no property in any set of emoluments. Consequently, when the 1991 Act varied the emoluments to which the appellant would be entitled it did not take away any right to property which the appellant had.
Section 4(5) of the 1991 Act clearly states that whatever rates of emoluments were payable up to September 1991 should be of no effect as from 1st October 1991 and section 4(9) sets out clearly what emoluments an officer would be entitled to as from that date. The question is whether, by the 1991 Act so providing, the appellant's property was taken from her.
It is common ground between the parties that there is a contractual relationship between public officers and the Crown. Whether a public officer such as the appellant may be dismissed at pleasure was canvassed during argument before us. [244] I would merely observe that public officers like the appellant appointed pursuant to the provisions of section 94 of the Constitution do not hold office at the pleasure of the Crown. The power of removal contained in section 94 has to be exercised in accord with certain statutory provisions themselves to be fulfilled in keeping with well recognised principles. I agree that the constitutional and other statutory provisions do not allow for the operation of the concept of the dismissibility at pleasure of public officers such as the appellant.
But the manner in which an officer may be dismissed is an issue quite separate and distinct from the question whether the officer's contract of employment (while it subsists) allows for a reduction or a variation in his/ her emoluments.
The position of public officers was put this way in Roshan Lal v. Union of India [1967] A.I.R. SC 1889 at page 1894:
"It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than 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 emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee."
There can be no doubt that the contract which the public officer holds must be consistent with any statutory provision which affects the contractual relationship; see Roshan Lal v. Union of India and Director-General of Education v. Suttling [1987] L.R.C. 1062. The appellant herself in her affidavit filed with the notice of motion deposed " . . . I hold office . . . in accordance with the Service Commissions (Public Service) Regulations, 1978 and all other laws for the time being in force, applicable thereto". One law applicable is the Civil Establishment Act. By that statute is determined the emoluments an officer holding a particular office is or will be entitled to be paid for services rendered under his contract. I am not aware that an officer can properly be paid other than what the statute says he is entitled to as emoluments. It must follow that the contract of a public officer will be subject to conditions set out in the Civil Establishment Act which relate to the office which he holds. One of the conditions is that the emoluments attaching to the office which he holds may be varied by Order. Consequently, the public officer cannot maintain that he has a right not to have his emoluments altered, varied or interfered with. The appellant has not shown that there was "property" which was taken from her. By virtue of the Civil Establishment Act a variation of his emoluments is a condition appertaining to the officer's contract of service.[245]
The 1991 Act looked at as a whole effects a variation in the emoluments of public offices, including the appellant's, albeit for a specified period. It has already been observed that the appellant does not dispute that emoluments of public officers may be varied by an ordinary law, notwithstanding that it is set out that a Minister may do so by Order subject to affirmative resolution of Parliament. Counsel for the appellant has also stated that it would not be sound to argue that where a Minister has power to act subject to affirmative resolution of Parliament that it would not be constitutionally correct for Parliament itself to exercise the power.
It follows from the above that the answer to the issues raised by the appellant's motion is that no property was taken from her or that what the 1991 Act effected was in keeping with a condition appertaining to her contract of service. There was no contravention of section 16 of the Constitution.
Sir Denys Williams, C.J. was correct to refuse the relief sought and dismiss the application. I would dismiss the appeal with costs certified for two counsel.
SIR FREDERICK SMITH: I have read the judgment just delivered by Moe, J. and I entirely agree with it. I merely wish to add the following. The three main questions to be asked and answered are: (1) Can the salary of a serving public officer vary during the officer's tenure of office? (2) Who or what authority can vary it? (3) Is the Public Service Reduction of Emoluments Act, 1991 (the "1991 Act") unconstitutional?
The Civil Establishment Act is an Act that continued in force after Independence and there can be no dispute about this. By virtue of section 2 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; and (d) determine the emoluments to be attached to such offices. Section 2(5) states that the power conferred by that section to make Orders is deemed to include a power exercisable in like manner and subject to like conditions to vary or revoke any such Order. Section 2(4) states:
"An Order under section I 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. "
It is clear therefore that the power exercisable under section 1 can only be effective if there is concurrence and agreement between the Minister and Parliament. [246]
The status of a public officer
In Roshan Lal v. Union of India [1967] A.I.R. SC 1989 at page 1894 Ramaswami, J. stated:
"It is true that the origin of the Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by public law and not by mere agreement between the parties. The emolument of the Government servant and his terms of office are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.
It is true that article 311 imposes constitutional restrictions upon the power of removal granted to the President and Governor under article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned. The matter is clearly stated by Salmond and Williams on Contracts as follows:
`So we may find both contractual and status-obligations produced by the same transaction. The one transaction may result in the creation not only of obligations defined by the parties and so pertaining to the sphere of contract but also and concurrently of obligations defined by the law itself, and so pertaining to the sphere of status. A contract of service between employer and employee, while for the most part pertaining exclusively to the sphere of contract, pertains also to that of status so far as the law itself has seen fit to attach to this relation compulsory incidents, such as liability to pay compensation for accidents. The extent to which the law is content to leave matters within the domain of contract to be determined by the exercise of the autonomous authority of the parties themselves, or thinks fit to bring the matter within the sphere of status by authoritatively determining for itself the contents of the relationship, is a matter depending on considerations of public policy. In such contracts as those of service the tendency in modern times is [247] to withdraw the matter more and more from the domain of contract into that of status'.
We are therefore of the opinion that the petitioner has no vested contractual right in regard to the terms of his service and that counsel for the petitioner has been unable to make good his submission on this aspect of the case."
I have set out this judgment in great detail because I share the reasoning of the judge and I am of the view that the relationship of public officers is one more of status than of contract and can be unilaterally altered by the Government depending on considerations of public policy.
Background
From the affidavits filed it appears that prior to September 1991 the Government of Barbados was experiencing serious difficulties with financial matters. Affidavits were filed by Gladwyn Ophelia King, the appellant; Mr Lionel Moe, the Permanent Secretary to the Minister of the Civil Service; Mr. Kurleigh D. King, the Governor of the Central Bank; Mr. George Reid, the Director of Finance and Economic Affairs, and Mr. Alfred Wendell McClean, senior lecturer in Economics at the University of the West Indies. These affidavits clearly indicate the serious state of the economy and especially the affidavit of the Governor of the Central Bank. His affidavit is to the following effect:
"I, KURLEIGH D. KING, Governor of the Central Bank of Barbados at Spry Street in the city of Bridgetown in Barbados MAKE OATH AND SAY AS FOLLOWS:
I . I have been Governor of the Central Bank of Barbados (hereinafter `the Bank') continuously from the month of September 1987.
2. My duties include serving as chairman of the board and as chief executive officer responsible for the execution of the board's policy and for the management of the Bank whose purposes are set out at clause 5 of the Central Bank Act.
3. My qualifications include that of Doctor of Philosophy in Business Administration from Columbia University, New York, and Bachelor of Arts in Mathematics and English from London University, England. My experience includes service as Secretary-General of the Caribbean Community, director of the Industry Division of the Caribbean Development Bank, general manager of the Barbados Industrial Development Corporation and professor of Management [248] and Public Affairs at Maharishi International University, Iowa, in the United States of America.
4. I am authorised to make this affidavit on behalf of the [Attorney-General] representing the Crown in right of its Government of Barbados.
5 . I have read the affidavits of Gladwyn Ophelia King and George L. Reid (hereinafter called `Dr. Reid') sworn and filed herein on 6th December, 1991 and on 1st January 1992, respectively.
6. Over the past ten years there have been persistent fiscal deficits that is to say excesses of Government expenditure over revenue continuing up to the time of the enactment of the Public Service Reduction of Emoluments Act, 1991 (hereinafter called `the Act'). These deficits have been accompanied by an excess of foreign exchange expenditures over the foreign exchange receipts from the main foreign exchange earning sectors, that is to say tourism, agriculture, manufacturing and financial services.
7. The fiscal deficits were financed in part by borrowings from the Central Bank which had the effect of increasing the amount of money in circulation, thereby stimulating the demand for goods and services. Since the majority of goods and services are imported this placed pressure on the country's foreign exchange reserves.
8 . I verily believe that it was necessary for Government to take serious action to reduce the pressure on the foreign exchange reserves by reducing or eliminating fiscal deficits.
9. I verily believe that 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.
10. I verily believe that 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.
11. I verily believe that the salaries and wages paid to Government employees from the Consolidated Fund account for nearly 50 per cent of the Government's current expenditure and that a sufficient reduction in the deficit could not be achieved without a reduction in Government's expenditure on salaries and wages. [249]
12. I am aware that the Government of Barbados 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.
13. I verily believe that the reduction of emoluments as provided for in the 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."
A public officer is paid from public funds drawn on the Consolidated Fund and the Government raises the money to pay public officers from the taxpayers of the country. When the economy is buoyant, the public officer benefits by a variation of his salary and emoluments upwards and there has never been any complaint about the variation or that the variation only applies to the office and not the officer. In fact, Barbados Governments have legislated increases of salary and emoluments unilaterally before. Similarly, when the economy is experiencing difficulty and according to the affidavits filed herein, there is need for a variation downward, that variation downward applies to the office and officers holding those offices. This is so whether the officer knew it or not on his first appointment, for the Civil Establishment Act gives the Minister and Parliament the power to vary emoluments and the power to vary by statutes is a salutary provision for circumstances as set out in the affidavits and may very well have been contemplated by the framers of the Civil Establishment Act and the legislature. Without that statutory power, it would appear that there would be no authority to vary a public officer's salary either up or down and, once that statutory power is exercised, the public officer has no property of which she has been deprived under section 16 of the Constitution. In this case, the Act came into force on 1st October, 1991 and consequently the appellant cannot claim that she was deprived of any property since she was only entitled to such remuneration as is set out in the statute authorising the variation. There is no breach of section 16 of the Constitution in my view
Further, it is in situations as outlined in the affidavits of the Governor of the Central Bank which can trigger the use of that power of variation, since failure to exercise it would have disastrous consequences for all the citizens of the country.
Sir Denys Williams, C.J. in his judgment (King v. Attorney-General (1992) 44 W.I.R. 52 at pages 64 to 66) states:
"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 the 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 [250] 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 [1994] 1 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 & 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 4 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.'
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 [251] provisions of section 112, that the salaries and terms of service 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."
I agree entirely with the Chief Justice and I am of the opinion that the question to be decided is not whether the Crown can dismiss an officer at will, but whether by statute the Minister with the approval of Parliament can vary a public officer's salary during his tenure by virtue of the Civil Establishment Act. In my view the answer is "Yes". It is by virtue of the statutory power given under the Civil Establishment Act that a change of emoluments can take place and, were it not for this statutory provision, it would appear that a public officer's contract could not be altered unilaterally.
In my view this variation of emoluments is reasonable and in keeping with Parliament's constitutional powers to make laws for the peace, order and good government of Barbados and it in no way interferes with the powers of the Public Service Commission as given to it by the Constitution since the Public Service Commission has no legal authority either to fix emoluments or vary them and is primarily concerned with appointments, promotion and discipline.
The next question is who can vary those emoluments? The answer is found in the Civil Establishment Act, section 2(4) which states:
"Any 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 . . ."
Thus, Parliament of which the Minister must be a Member can vary any Order under section 2(1): see section 65 of the Constitution. Section 48(1) of the Constitution is as follows:
"Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Barbados."
The third question deals with the 1991 Act, i.e., the Act entitled the Public Service Reduction of Emoluments Act, 1991 which came into force on October 1, 1991. It was passed by Parliament as an ordinary law and its constitutionality is questioned. The Act itself does not deal only with civil servants who fell under the Civil Establishment Act but it includes under the rubric "Public Service":
"(a). . . has the moneys assigned to it by section 117 of the Constitution;
(b) (i) bodies corporate established by law for public purposes which are funded by moneys provided by Parliament; [252]
(ii) the Central Bank of Barbados established under the Central Bank of Barbados Act; and
(iii) (A) any other body - the funds of which comprise or include such moneys as under an enactment may be voted by Parliament for the purpose; or
(B) all or any of the expenses which are charged on or are met from the Consolidated Fund, but does not include a body by reason only that a donation or ex gratia payment is made from the Consolidated Fund to that body."
It is clear that this Act goes much further than the Civil Establishment Act, in that it includes a greater number of persons than those persons who would fall under the Civil Establishment Act.
There is, in my view, no argument that the Minister and Parliament have no power to vary the emoluments under the Civil Establishment Act. In fact, the appellant concedes that the Minister could vary the emoluments under the Civil Establishment Act although she agrees that it could only apply to future office-holders and not to her.
The Chief Justice in his judgment (44 W.I.R. at page 74) states:
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 [appellant] must show that it is.
The contention is that it is unconstitutional because it is an ordinary law which is in conflict with a right in the [appellant] not to be deprived of emoluments payable under her contract of employment without compensation. The submissions 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. [253]
It would seem to me, on analogous reasoning, that the protection given to section 112 office-holders by the entrenched provisions of the Constitution against alteration by ordinary law of their salaries and 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 [appellant], who do not hold section 112 officers 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 apposite. 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 necesarrily 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 [appellant] 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 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 [appellant] 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 [appellant'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 therefore constitutional and does not deprive her of any right, or, if it does, the deprivation is necessarily incident to her contract of employment.
The [Attorney-General] submitted that the 1991 Act, in so far as it affects the [appellant], qualifies as an alteration or modification of an existing law within [254] 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."
In this case, Parliament exercised a power it had under the Constitution and in my view the 1991 Act is constitutional since I have held that there is no breach of section 16 of the Constitution and there is no need for any special method for enactment. An ordinary law is sufficient. I agree with the reasoning of the Chief Justice and hold that the 1991 Act is constitutional. I would dismiss the appeal and award costs to the Attorney-General.
Appeal dismissed with costs.[255]
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