| TRINIDAD AND TOBAGO—Constitution—Police Service Commission—Examinations for promotion within Police Service—Whether appointment of Examination Board responsibility of Police Service Commission or executive— Constitution of the Republic of Trinidad and Tobago, Sch, s 123—Police Service Commission Regulations, reg 19
Cooper and another v Director of Personnel Administration and another
PC: Lord Bingham of Cornhill, Lord Steyn, Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond: 6 July 2006
It was the sole responsibility of the Police Service Commission to appoint the Examination Board referred to in regulation 19(2) of the Police Service Commission Regulations and the setting and marking of the papers by the Examination Board was subject to the ultimate control of the Police Service Commission and not the executive.
The Judicial Committee of the Privy Council so held when allowing an appeal by the appellants, Eusebio Cooper and Clifford Balbosa, from the decision of the Court of Appeal of Trinidad and Tobago, dated 19 January 2005, reversing the decision of Myers J dated 30 December 2003.
The appellants were both police corporals with the Trinidad and Tobago Police Service who in August 2002 sat the examinations for promotion to the rank of police sergeant set by the Public Service Examination Board which also assumed responsibility for marking the examination papers and releasing the results to the candidates. Many months passed without the release of any results. On 7 July 2003 the “Trinidad Express” published an article by the President of the Police Social and Welfare Association complaining about the delay in releasing the results and stating that it was not an isolated problem. The article attributed the delays to the respondents, the Director of Personnel Administration and the Police Service Commission. On the next day the Police Service Commission issued a media release disclaiming any responsibility for the conduct of the examinations and stating that “the sole responsibility for the conduct of the examinations falls under the purview of the Public Service Examination Board, which is a Cabinet appointed body, the management of which is the responsibility of the employer”. A few days later the appellants commenced judicial review proceedings against the Director of Personnel Administration and the Police Service Commission seeking declarations, inter alia, that the setting of the examinations by the Public Service Examination Board was unconstitutional. Myers J declared that the appointment of the Public Service Examination Board by the Cabinet was unconstitutional and of no effect and that the Police Service Commission was the only authority responsible for the conduct of promotion examinations for the Police Service, including the setting, marking and timing of the examinations and the publication of the results.
LORD HOPE OF CRAIGHEAD, giving the judgment of their Lordships, said that the function of appointing officers to the Police Service, including their promotion and transfer, was a matter exclusively for the Police Service Commission, but they did not employ the police officers. The police officers were employed by the executive. Regulation 15(5) of the Police Service Commission Regulations required that the interview of a police officer who was successful in the promotion examination for promotion to any office in the Police Service must be conducted jointly by, among others, the chairman of the Examination Board. So the appointment of an examination board was an essential part of the whole process. The Constitution did not permit the executive to impose an examination board of its own choosing on the Commission. It was for the Commission to exercise its own initiative in the matter, free from influence or interference by the executive. The Commission, might if it chose, make use of a Public Service Examination Board appointed by the Cabinet since there might be advantages in so doing. It must be free to decline the services of the Public Service Examination Board if it suspected that the executive was seeking to use the Examination Board as a means of influencing or interfering, directly or indirectly, with appointments to or promotions within the Police Service, which were matters exclusively within the responsibility of the Police Service Commission. The media release of 8 July 2003 was wrong to state that the sole responsibility for the conduct of examinations for appointment to and promotion within the Police Service lay with the Public Service Examination Board, the management of which was the responsibility of the employer, namely the executive. Section 123 of the Constitution declared that the power of appointment of persons to hold office in the Police Service, including appointments on promotion and transfer, was vested in the Police Service Commission. Sole responsibility for the conduct of examinations for the appointment and promotion of police officers lay with the Commission. How the Commission discharged that responsibility was a matter for the Commission itself to determine, in the exercise of its powers under the Police Service Commission Regulations. Regulation 19(1) provided that all examinations in the Police Service should be set and marked by such Examination Board as might be appointed for the purpose. The regulation did not state in terms by whom that appointment was to be made. But, in the context of the Regulations as a whole, and in the light of Chapter 9 of the Constitution in particular, it must be understood as reserving the power to make the appointment to the Commission and not to the executive. The Director of Personnel Administration, whose duties extended across the entirety of the public service in Trinidad and Tobago, was responsible for the conduct of the examinations under regulation 19(2). But his responsibility extended only to how the examinations that were to be set and marked by the Examination Board that the Commission had appointed were to be administered in practice. It did not detract in any way from the responsibility that rested on the Commission, with which the power of ultimate control lay, to make that appointment. Their Lordships would allow the appeal and declare that it was the sole responsibility of the Police Service Commission to appoint the Examination Board referred to in reg 19(2) of the Police Service Commission Regulations and that the setting and marking of the papers by the Examination Board was subject to the ultimate control of the Police Service Commission.
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