BETWEEN: 1. RICHARD NEAL 2. DANIEL DIAZ APPLICANTS

Transcription

1 IN THE SUPREME COURT OF BELIZE A. D ACTION NO. 458 OF 2003 BETWEEN: 1. RICHARD NEAL 2. DANIEL DIAZ APPLICANTS AND THE ATTORNEY GENERAL RESPONDENT Mr. Dean Barrow S.C., for the applicant. Mr. Elson Kaseke, Solicitor General, for the respondent. AWICH J J U D G M E N T 1. Notes: Constitutional motion concerning public service regulations made under s:106 of the Constitution; whether the offices of the applicants have been abolished, and whether as the consequence the applicants were entitled to retirement under regulations 18 and 22 of the Constitution (Services Commissions Regulations), and s: 6 of the Pensions Act Cap. 30; delegation by the Public Services Commission of the power to transfer officers. Procedure: Whether the proper proceedings ought to be by judicial review for a quashing order; whether judicial review was avoided by the applicant because claimants in judicial review would have to obtain prior permission to bring judicial review proceedings, and because the appellants would have to show good reason for not first persuing the 1

2 statutory redress of appeal to the Public Services Commission as provided in regulation 45, whether the application was an abuse of process. 2. The applicants, Mr. Richard Neal and Mr. Daniel Diaz, are persons employed in the public service of Belize, in the posts of overseers in the Government Printing Department, Ministry of Home Affairs. They remained employed, or at least were still drawing salary at the time of the trial of their joint case. Mr. Neal had been employed for 27 years, and Mr. Diaz for 24 years. The respondent is the Attorney General representing the Public Services Commission. The case papers do not disclose the ages of the applicants, however, from the grounds of their joint application, it is obvious that they had not reached the age of compulsory retirement or early retirement. 3. The applicants were unhappy with their transfer to the Immigration Department when the Government Printing Department was privatized in the year They demanded to be retired and paid benefits and pensions instead because, they say, their posts were abolished by the privitisation, and they were made redundant. The Public Services Commission refused their demand. The applicants then brought this joint constitutional motion, constitutional 2

3 application, for court declarations to provide confirmation of their demand. 4. The fuller facts and grounds on which the application is based are these. In 2003, the Government decided to privatize, that is, to sell off the assets and operations of the Printing Department of the Government of Belize to a private business. It announced its decision in a press release dated On , the Chief Executive Officer in the Ministry of Home Affairs in which the Government Printing Department was, wrote to each member of the staff including the applicants, concerning their future. He offered to every member of staff three options, namely: transfer on appointment in the wider Public service; option to leave the public service; and employment with Print Belize. Print Belize was the private entity that bought the assets and operations of the Department. 5. In a later press release, dated , the Government through the Ministry of the Public Service, issued a position paper, regarding the position of the staff of the Printing Department. The paper repeated the three options offered, and explained that the option, to 3

4 leave the public service, meant that an employee would choose to retire on attaining the age of 55 years, or with approval of the Governor General, on attaining a lower age not less than 50 years. The paper explained further that, the retiring officers would be paid retirement benefits, including pensions, under s: 6 (1) (a) (ii) of the Pensions Act. So in reality, the option to leave the public service was nothing new, it was about retirement as provided in the law, the Pensions Act. 6. On , the CEO of the Ministry of the Public Service wrote to the applicants reminding them that they had not chosen from the options, despite the letter of the CEO of the Ministry of Home Affairs to them dated , asking them to do so. The CEO, the Public Service, asked them to make their choices. Still the applicants did not make their choices. 7. Again on , the CEO, the Public Service, wrote to each applicant imploring him to indicate his choice out of the three options by Instead of indicating their choices, the applicants wrote a joint reply on , in which they contended that, the 4

5 privatization: abolished our jobs since the Printery will no longer be a government department. We request that we be retired in accordance with s: 6 (1) (a) (ii) of the Pensions Act. We wish to ensure that we are justly compensated in accordance with the said section which forms part of our terms and conditions of service, in a timely manner without prejudice. 8. The next day, , Mr. Twist, an attorney acting for the applicants, wrote to the Public Services Commission stating that the applicants did not wish to exercise any of the three options; and he repeated the contention and demand of the applicants that, they be retired under S: 6 (1) (a) (ii) of the Pensions Act. On , the director of the Services Commission replied refusing the demand of the applicants and advising that: no public officer has a right to be retired merely because of restructuring or privatization of the functions of the department in which he works; and that the applicants would be transferred to, the wider public service without loss of salary and benefits. 5

6 9. During the exchange of correspondence, the applicants were transferred on , to the Immigration Department, in the Ministry of Home Affairs, as clerical officers on pay scale P.10 which was the pay scale they had in the Printing Department before their transfer. In a matter of days after, the applicants were promoted to the posts of senior immigration officers on pay scale P. 11, and offered opportunity of training to be conducted by the Immigration Department. The promotion was intended to persuade the applicants to abandon their demand for retirement. 10. The applicants were still not satisfied. They have jointly brought this constitutional application. They insist on their demand for retirement under s:6 (1) (a) (ii) of the Pensions Act. They have applied to the Supreme Court for a large number of court declarations. They expect that the Government will heed the court declarations if made, and grant to them retirement, pensions and other benefits under s: 6 (1) (a) (ii) of the Act. 11. Determination. 6

7 It is necessary for ease of following the reasons for the determination of the application, to set out the declaratory reliefs sought. They are the following: 1. a declaration that the sale and transfer of all the assets (to a private company, Print Belize Limited) of the Government Printer s Department and the cessation of its function, resulted in the abolition, within the meaning of Section 22(1) of the Belize Constitution Services Commission Regulations, of the applicants Public Service offices of overseers, Government Printer s Department; 2. a declaration that the de facto abolition of their offices resulted in the entitlement of the applicants in the absence of any suitable alternative posts in the Public Service, to be retired under Regulation 22(1) of the Belize Constitution Services Commission Regulations, and to be paid immediate pension and gratuity under Section 7

8 6(1)(a)(ii) of the Pensions Act, Chapter 30 of the Laws of Belize, R.E.2000; 3. a declaration that the decision of the Public Services Commision to refuse retirement to the applicants and instead transfer them to the Ministry of Home Affairs to perform clerical duties, was in the circumstances unreasonable, unfair and improper as having been made without consideration of relevant factors; 4. a declaration that the decision of the Public Services Commission to refuse to retire the applicants and instead to transfer them to the Ministry of Home Affairs was not truly a decision of the Public Services Commission but of the Ministry of Home Affairs and the Ministry of the Public Service; or in the alternative, that the said decision was made on the basis of an extraneous consideration, viz the need to legitimize a decision 8

9 already (illegally) taken by the Ministry of Home Affairs and the Ministry of the Public Service; 5. a declaration that the refusal by the Government of Belize, and/or the Public Services Commission and/or the Governor General of Belize to pay the applicant s pension and gratuity, amounts to an unlawful deprivation of property and is contrary to section 17(1)of the Belize Constitution. 12. I have to say rightaway that the proposed declaration sought at paragraph 4 that, the decision to transfer the applicants, was not truly a decision of the Public Services Commission, but of the Ministry of Home Affairs and the Ministry of the Public Service, is completely unfounded. The decision was made by the CEO of the Ministry of the Public Service in concert with the CEO of the Ministry of Home Affairs, acting by the authority of two separate instruments dated , by which the Public Services Commission delegated to each of the CEO, its power to transfer the staff of the Printing Department. The delegation was not unlawful, it was authorized by s: 9

10 106 (5) of the Constitution. The applicants did not adduce any evidence to rebut the two exhibits which proved that the decision to transfer staff of the Printing Department was principally taken by the Public Services Commission, which then delegated its authority to the two CEOs to take detailed and specific decisions about the transfer of individual officers. 13. The delegation of the power to transfer, made by the two instruments issued under s: 106 of the Constitution was unnecessary anyway, in my view. I do however, appreciate the anxiety of the Government, and the extra precautionary action that the Public Services Commission took. The two specific instruments were unnecessary because delegation to the Chief Executive Officer, Ministry of the Public Service, of the power to transfer officers holding posts within the clerical grade had already been generally made by the law in regulation 44.4(2). The applicants were persons holding clerical posts at pay scale P.10. The second reason is that the power to transfer officers from one department to another within a ministry had already been generally delegated to the Chief Executive Officer of that Ministry by the law in regulation 44.4(4). The transfer of each 10

11 applicant was from the Printing Department to the Immigration Department, both within the same Ministry of Home Affairs. 14. From the above, it follows that the proposed alternative declaration at paragraph 4 that, the decision taken by the Commission was based on, an, extraneous consideration viz, the need to legitimize a decision already illegally taken by the Ministry of Home Affairs and the Ministry of the Public Service, was also unfounded. There has been no evidence proving that the decision to transfer the staff was taken at anytime without the authority of the Public Services Commission or outside regulation 44.4, or otherwise unlawfully. Instead the evidence showed that the Government took a deliberate policy decision which it got the Ministry of Home Affairs and the Ministry of the Public Service to publicise and to inform the staff about. Both ministries offered to the staff opportunity to discuss their fate and make choices. The decision to privatize the Department was a policy matter the merit of, was the exclusive purview of the Government, the Executive Organ of the State. 11

12 15. The participation of the CEO, the Public Service, showed that the Public Services Commission was informed about the policy decision by the Government to privatize the Printing Department; and the desire of the Government to refer the fate of the staff, including their transfer and retirement, to the Public Services Commission as required by s: 106 of the Constitution. The Commission took the decision about the fate of the staff of the Department as a necessary consequence of the privatisation policy. The applicants did not identify the extraneous consideration that they complained about. I see no extraneous information taken into consideration when the decision to transfer the applicants was made after they had failed to make choices out of the three options offered. I see no merit in the reasons given for the declaration proposed at paragraph 4 that, the decision to transfer the applicants was unconstitutional or otherwise unlawful. 16. Further, I have to say straightaway that the declaration proposed at paragraph 5 that, the refusal by the Public Services Commission to pay pensions and gratuities to the applicants was an unlawful 12

13 deprivation of property under s: 17(1) of the Constitution, was also unfounded. Section 17 (1) of the Constitution states as follows: 17. (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 a law that (a) prescribes the principles on which and the manner in which reasonable compensation therefore is to be determined and given within a reasonable time; and (b) secures to any person claiming an interest in or right over the property a right of access to the courts for the purpose of (i) establishing his interest or right, if any; (ii) determining whether that taking of possession or acquisition was duly 13

14 carried out for a public purpose in accordance with the law authorizing the taking of possession or acquisition; (iii) determining the amount of the compensation to which he may be entitled; and (iv) enforcing his right to any such compensation. 17. It is clear that the section presupposes proprietary right which the complainant would have had already, before the property was compulsorily acquired by the Government or other public authority. The Constitution does not forbid the Government or any other public authority from compulsorily acquiring property, but it requires as preconditions for compulsory acquisition of property that, a law be in place or enacted prior to the acquisition, and which law must provide for principles on which and the manner in which reasonable compensation would be determined and paid within a reasonable time. The law must also provide for the right of the aggrieved owner of 14

15 property to access to court for the purposes of determining whether the compulsory acquisition is for a public purpose, and for enforcing his rights and interests. 18. On the facts proved, the claim of the applicants for pensions and gratuities have not yet materialized into a concrete proprietary right. It is at this stage simply a claim of right based on a contract of employment with the Government. It is merely a claim in court to be adjudged or dismissed, a chose in action. An asset or a receivable has not yet materialized from the claim. There is yet, no property that the applicants could have been deprived of. 19. It is convenient to consider the declarations proposed at paragraphs 1 and 2 together. It is correct that the sale of the assets and operations of the Printing Department resulted, as a matter of fact, in the abolition of the posts (or offices) that the applicants held in the Department. Abolition of an office in the public service is one of the ways recognized by the Constitution at regulation 22, by which a public officer may leave office; so the privatization of the Printing 15

16 Department resulting in abolition of the offices held by applicant was not an unconstitutional way of cessation of office. 20. It is not correct, as a matter of fact, though, that there were no suitable alternative posts within the Ministry of Home Affairs, or in the public service, to the clerical posts of overseers that the applicants held. The post at payscale P.10 held by the applicants were graded as clerical; they were relatively low level posts. Whatever training they may have received for their jobs at the Printing Department could not have made the applicants so highly specialized professionals who could not be reassigned to other jobs in the clerical grades elsewhere in the public service. Furthermore, I am aware that the applicants had supervisory responsibilities. That is, however, not peculiar to the Printing Department. 21. The opinion of the Privy Council in, Martha Pech and Others v the Attorney General of Trinidad & Tobago, Privy Council Appeal No. 57 of 2001, the case cited by counsel for the applicants, does not help the applicants. In that case, the appellants demanded to be regarded as public officers following privitazation. In this application the 16

17 applicants demanded to be regarded as having retired as a matter of law. 22. The facts in the Martha Pech case are these. A statutory board, the Trinidad and Tobago Post, was created to replace the Post Office, a department of Government. The staff was given the options of: voluntary retirement on condition to be agreed; transfer to the Board on conditions not less favourable to those they had enjoyed; and remaining in the public service, provided there was a commensurate office. The applicants, a post mistress of a branch office and two others, did not transfer to the Board and there was no commensurate office in the public service. They opted for voluntary retirement and retired. They claimed that the option to retire was forced upon them and so it was contrary to s: 121 of the Constitution which vested in the Public Services Commission the exclusive power among others, to appoint, promote, transfer, discipline and remove public officers. The ground of their claim was that the Government still ran the postal services albeit through the Board, and so the appellants and those who worked for the Board remained persons who, worked in the service of the Government in a civil capacity, and remained entitled to the 17

18 protection provided in s: 121 of the Constitution, and subject only to the powers exercisable by the Public service Commission. The Privy Council held that: the employees of the Trinidad and Tobago Post Board, were not holders of any public office and were not employed in the service of the Government in a civil capacity. It further held that, in respect to the appellants and those who chose to retire voluntarily because there was no suitable office, there was no violation of their constitutional right ; and further more that, retirement, whether voluntary or compulsory was a constitutional mode of leaving the public service 23. From the affidavits of the applicants, the more extensive reason they gave for their resistance to transfer from the Printing Department was the prospects of transfer from Belmopan to other stations that the Immigration Department may post staff to. I concluded, that was the real reason for the applicants making their application to court. The applicants preferred to retire than go on transfer out of Belmopan. In their way was the fact that they were under aged for voluntary retirement, that is, early retirement, which would entitle them to pensions and possibly gratuities. Their predicament was that if they 18

19 rejected the transfer offered, they would be considered to have resigned and would not be considered entitled to pensions and gratuities under s: 6 (1) (a) (ii) of the Pensions Act. 24. The contention of the applicants on a point of law that, they were entitled under reg: 22 (1) (f) of the Constitution (Services Commissions Regulations) as the result of abolition of their office, to retirement and therefore to pensions and gratuities under s: 6(1) (a) (ii) of the Pensions Act, is in my view incorrect. Regulation 22 (1) of the Constitution (Services Commissions Regulations) states: 22. (1) The modes by which a Public Officer may leave the Public Service are: (a) on dismissal or removal in consequence of displinary proceedings; (b) on compulsory retirement due to age; (c) on voluntary retirement; (d) on retirement on medical grounds; 19

20 (e) on the expiry or other termination of an appointment for a specified period; (f) on the abolition of his office; (g) in the case of a Public Officer on probation, on the termination of his appointment; (h) on compulsory retirement for the purpose of facilitating improvement in the organization of his Ministry or Department; (i) on abandonment of office; and (j) on dismissal on security grounds. 25. It is my view that, the use of the word may in the opening clause The modes by which a public officer may leave the public service are, renders the entire regulation 22 not peremptory unless stated in a particular subsection. It is within the discretion of the Public Services Commission to decide that a particular abolition of an office entitles the officer to leave the public service. In regard to the abolition of the offices of the applicants as the result of the 20

21 privatization of the Printing Department, it was, in my view, correctly decided by the Public Services Commission that the abolition did not result automatically in an absolute right of an individual member of staff to leave the public service. Section 6 (1) (a) (ii) of the Pensions Act, which permits payment of pensions in the event of abolition of office, is subject to reg: 22 (1) of the Constitution (Services Commissions Regulations), and is applicable only after retirement for reason of abolition of office has been granted. Moreover, s: 6 permits payment of pension only when a public officer has attained at least the age of 50 in the case of voluntary retirement, otherwise compulsory retirement is at the age of The declaration proposed at paragraphs 3 that, the refusal to retire the applicants, and instead to transfer them was unreasonable, unfair, improper, is also unfounded. The decision was made within the law, and for the purpose of benefiting the public service in that the services of the applicants would be retained until they reached the age of retirement. It was also made for the purpose of ensuring the continued employment of the applicants. The decision cannot be faulted on the basis of unreasonableness according to the guideline in 21

22 the case of, Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB.223. The decision could not be said to be malicious or so unreasonable that no person acting reasonably and taking into consideration relevant facts would have made it. It was within the Constitution and the Pensions Act. It is not for the court to judge the financial and administrative merits of the decision. 27. So, on the facts and law, all the prayers for all the declarations proposed must fail. There should be no need to say anything further, however, I am obliged to mention that this application raised a very important procedural point which the representative of the Attorney General may have overlooked. The point is that there is ample evidence from which inference may be drawn that, the complaint in this case was brought to court as an application for constitutional relief merely to avoid proceedings by judicial review which are the proper proceedings for impugning administrative decision such as was made to privatize the Printing Department. 28. By judicial review proceedings, the claimant would come to the Supreme Court and ask the court to remove to the court and quash the 22

23 decision of the Public Services Commission made through the two CEOs, which decision the applicants said aggrieved them. The Supreme Court has that supervisory jurisdiction. Of course, for the court to exercise that jurisdiction, the applicants would have to show that the decision was a suitable subject matter for review by court because: (1) it was illegal, that is, contrary to the law that applies to the employment of the applicants, or to the Constitution in some way; or (2) the decision was arrived at by an unlawful or unfair procedure; or (3) the decision was so unreasonable so as to be irrational. The three criteria are usually summarized as: illegality, procedural impropriety and irrationality. The three cases that illustrate extensively those three rules are: (1) The Council of Civil Service Unions and Others v Minister for the Civil Service [1985] A.C 374; (2) Cooper v Wandsworth Board of Works (1863)14CB (NS) 180; and (3) Board of Education v Rice [1911] AC Procedurally, had the applicants come to court by an application for judicial review of the decision of the Public Services Commission, or of the two CEOs, the applicants would have been required to obtain permission first. They were likely to fail to obtain permission. It 23

24 appeared doubtful that their case disclosed arguable grounds and fit for further investigation on inter partes basis on full facts and full submissions on points of law, so that the applicants could be permitted to file a judicial review claim. I have to mention however, that in their favour they had sufficient interest in the subject matter, the decision to transfer them; they had the legal standing. Two cases: R v Inland Revenue Commissioners ex parte National Federation of Self Employed and Small Businesses Ltd [1982] A. C 617, and of R. v Secretary of State ex parte Rukshanda Begum and Angur Begum [1990] E.O.D. 107 CA, are good examples of the application of the rule and test for granting permission. 30. The second obstacle that the applicants would have met in judicial review proceedings was that they would have been required to give good reason for not having taken their complaint first on appeal to the Public Services Commission, as required by regulation 45. The case of R v. Birmingham City Council ex parte Ferrero Ltd [1993] 1 All ER 530, makes the point that relief by judicial review is usually denied if there is an alternative statutory process of redress that the claimant has not made use of before going to court. Relief might have 24

25 been refused to the applicants on that ground, irrespective of any merit in their complaint. 31. It is a probable inference that the applicants in this constitutional application decided to come to court by a constitutional application other than by judicial review proceedings because permission was not required for a constitutional application to be made. It is my respectful view, that this application is an abuse of the court process. It is one of the rare cases in which the rule in O Reilly v Mackman Others [1983] 2 A.C. 237, applies. 32. All the proposed declarations sought are refused. The joint constitutional application of the applicants is dismissed. In the circumstances parties will bear own costs. 33. Delivered this Tuesday 21 st day of April 2009 At the Supreme Court Belize City Sam Lungole Awich Judge Supreme Court 25