Martha Perch and Others v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 20 February 2003 |
| Neutral Citation | [2003] UKPC 17 |
| Court | Privy Council |
| Docket Number | Appeal No. 57 of 2001 |
| Date | 20 February 2003 |
[2003] UKPC 17
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hutton
Lord Millett
Lord Walker of Gestingthorpe
Privy Council
[Delivered by Lord Bingham of Cornhill]
In the course of hearings before Gregory Smith J at first instance and the Court of Appeal (de la Bastide CJ, Warner and Nelson JJA) and before the Board, the issues in this litigation have been progressively refined and simplified. The crucial question which now arises is whether persons employed in the Trinidad and Tobago Postal Corporation, a body established by the Trinidad and Tobago Postal Corporation Act 1999 and known as "Trinidad and Tobago Post", are to be regarded as in "the service of the Government of Trinidad and Tobago in a civil capacity" within the meaning of those words in section 3(1) of the 1976 Constitution of the Republic of Trinidad and Tobago. On the answer to that question depends the constitutionality of the 1999 Act, or some sections of it, which the appellants challenge.
In Trinidad and Tobago, as in many other countries, the Post Office was historically treated as a department of government and its employees as public servants. Thus in the Post Office Act 1938 (Chap. 47: 01) it was provided in section 41(1):
"There shall be in the public service a Postmaster General for Trinidad and Tobago and such number of Postmasters and subordinate officers as may be necessary for the purposes of this Act."
It is unnecessary to elaborate this point, which is not controversial. Thus it is plain that recognised grades of postal workers were entitled to the protection afforded to public officers by the 1962 Constitution: see Trinidad and Tobago (Constitution) Order in Council 1962 ( SI 1962/1875), Second Schedule, sections 92, 93, 105(1).
The Civil Service Act 1965 (Chap 23: 01) regulated the Civil Service, of which recognised grades of postal workers were part by virtue of section 3(1), the First Schedule to the Act as originally enacted and later Classification Orders. In Regulations made under the Act there was scheduled a list of civil service offices distributed between different classes, including the various grades of postal workers. Section 12 of the Act specified the various modes by which a civil servant might leave the Civil Service which included
"(a) on dismissal or removal in consequence of disciplinary proceedings;
(b) on compulsory retirement;
(c) on voluntary retirement;
(e) on resignation;
(g) on the abolition of office;
(h) in the case of a civil servant on probation, on the termination of appointment; …"
Closer attention must be paid to the 1976 Constitution, for it is this which the 1999 Act is said to violate. This Constitution was scheduled to the Constitution of the Republic of Trinidad and Tobago Act 1976. Section 2 of the Constitution provides that it should be the supreme law and that any other law inconsistent with it should be void to the extent of such inconsistency. Section 3(1) lays down a number of definitions, of which the most important for present purposes are these:
"'public office' means an office of emolument in the public service;
'public officer' means the holder of any public office and includes any person appointed to act in any such office;
'public service' means … the service of the Government of Trinidad and Tobago in a civil capacity."
Attention was drawn in argument to subsections (4) and (5) of section 3, to which the definition of "public service" is expressly subject, but these contribute little to the present problem. More germane is subsection (6):
"References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service."
Chapter 9 of the Constitution governs appointments to and the tenure of public offices. Provision is made for a Police Service Commission and a Teaching Service Commission and, relevantly to these appellants, a Public Service Commission. All three commissions are so composed, structured and regulated as to ensure that they are independent and immune from political pressure, the object being to ensure that civil servants, police officers and teachers are similarly independent and immune. Lord Diplock explained the purpose of these provisions in Thomas v Attorney-General of Trinidad and Tobago [1982] AC 113 at 124 in a way which, although directed to the 1962 Constitution, remains apposite. Section 121 of the Constitution includes the following subsections central to this appeal:
"(1) Subject to the provisions of this Constitution, power to appoint persons to hold or act in offices to which this section applies, including power to make appointments on promotion and transfer and to confirm appointments, and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission.
(7) This section applies to all public offices including in particular offices in the Civil Service, the Fire Service and the Prison Service, but this section does not apply to offices to which appointments are made by the Judicial and Legal Service Commission, the Police Service Commission or the Teaching Service Commission or offices to which appointments are to be made by the President."
In Trinidad and Tobago, as in other countries, there came a time when the policy of the Government was to limit its participation in commercial activities, as Mr George, Permanent Secretary of the Ministry of Public Utilities, deposed in an affidavit sworn on 14 July 1999. Technological advances such as facsimile transmissions and electronic mail were rendering postal services vulnerable to competition. The Universal Postal Union, of which Trinidad and Tobago is a member, contemplated a change of practice as early as September 1994 and at its Congress held at that time appealed to the governments of member countries (among other things) to "Give the Post a legal status and a modern management system which guarantee it appropriate financial independence, and of course accountability, in particular, as regards a commercial approach and greater satisfaction of customers' needs".
The 1999 Act was Trinidad and Tobago's response to this appeal and to the changed environment in the postal world. The Act did not apply to telephones, which had always been run by a commercial company. The Act repealed most of the Post Office Act (section 64(1)) and established the corporation referred to at the outset of this judgment, Trinidad and Tobago Post, which was charged to provide inland and foreign postal services (section 6(a)) and empowered to carry out related businesses (section 6(b) and (c)). It was given wide powers (section 7), including borrowing powers (sections 31 and 32), and was required to operate on sound business principles (section 8(a)) and to implement Government policy as conveyed to it (section 8(b)). It was given certain exclusive rights for a 5-year period (section 9(1)). Management of the corporation was entrusted to a small board, appointed by the President (section 11(1)) acting on the advice of the responsible Minister, on terms specified in the First Schedule. The President could revoke the appointment of a board member (First Schedule, paragraph 1(7)), and the Minister could give directions in writing to the board on matters of broad public policy, to which the board was obliged to give effect (section 17). The board was required to prepare a corporate plan, a financial plan for the forthcoming year and an annual report, which were to be submitted to the Minister (sections 19, 21 and 24). The board was required to have regard to specified operating and accounting rules (sections 21(3) and 22) and the corporation was subject to annual audit by the Auditor-General or his nominee (section 23). There were detailed financial provisions in Part V of the Act: the...
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