| SAINT LUCIA — Constitution — Magistrate — Appointment for one year — Contract allowing for determination on notice — Government summarily terminating contract — Whether constitutional — Saint Lucia Constitution Order 1978 (SI 1978/1901), Sch 1, s 91
Fraser v Judicial and Legal Services Commission and another [2008] UKPC 25; [2008] WLR (D) 139
PC: Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Mance: 6 May 2008
A magistrate, on a fixed term appointment in Saint Lucia, enjoyed the same constitutional rights against summary dismissal as a member of the higher judiciary, regardless of any contractual term to the contrary.
The Privy Council so held in allowing an appeal by the claimant, Horace Fraser, from a decision of the Eastern Caribbean Court of Appeal (Saint Lucia) (Gordon, Barrow and Rawlins JJA) dated 28 November 2005, allowing an appeal by the first defendant, the Judicial and Legal Services Commission, from a decision of Shanks J Ag, sitting in the Eastern Caribbean Supreme Court (Saint Lucia) on 10 June 2005, by which he granted the claimant declarations that the Commission and the Government had acted in contravention of s 91 of the Constitution of Saint Lucia in removing the claimant from his office as a magistrate. The second defendant was the Attorney General of Saint Lucia.
LORD MANCE, giving the opinion of the Board, said that under s 91 of the Constitution of Saint Lucia “the power to appoint persons to hold or act in offices” which included the office of magistrate was vested in the Judicial and Legal Services Commission and “the power to exercise disciplinary control over persons holding or acting in [such] offices …. and the power to remove such persons from office” was likewise vested in the Commission. Pursuant to decisions by the Commission, the claimant served as a magistrate in Saint Lucia under successive annual contracts until, by letter from the Ministry of Public Service, he was dismissed from his office. Reliance had been placed on a decision of the Court of Appeal in Attorney General of Saint Christopher and Nevis v Inniss (unreported) 14 January 2002; Civil Appeal No 68 of 2000. In that case a registrar had held a two-year contract expressed, by a provision identical to a clause in the claimant’s agreement, to be capable of determination at any time on three months’ notice or by paying one month’s salary in lieu. She was summarily dismissed. The Constitution of Saint Christopher and Nevis gave the power to exercise disciplinary control and to remove from office to the Governor General “acting in accordance with the recommendation of the Judicial and Legal Services Commission”. The registrar argued unavailingly that that provision overrode or precluded the operation of the contractual provision for summary determination. The Court of Appeal observed that members of the lower judiciary did not enjoy the same security of tenure as the Board had recognised the higher judiciary to have in Hinds v The Queen [1977] AC 195, and held that there was nothing to preclude the exercise of a contractual right. The Inniss case had been wrongly decided. The distinction which Lord Diplock had drawn in the Hinds case, between the position of the higher and lower judiciary under Westminster model constitutions like that of Saint Lucia, related to the differing degrees of security enjoyed by those different levels of judiciary. Lord Diplock had not been suggesting that the lower judiciary enjoyed no security at all. On the contrary, he mentioned that they had the protection, in the Hinds case under a similar though not identical provision in the Constitution of Jamaica to s 91 in the Saint Lucia Constitution, that they could not be removed or disciplined except on the recommendation of the Judicial Services Commission with a right of appeal to the Privy Council. The expiry of an appointment in the ordinary course of a fixed term could not be described as a “removal” from office. But provisions whereby the Ministry engaging a member of the lower judiciary could bring a term of office to an end prior to its natural expiry fell into a different category. If the Government, when engaging a member of the lower judiciary, could include and then operate such a provision independently of the constitutional protection afforded by a provision such as s 91, the judicial officer in question would have little security at all.
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