Supreme Court
Action No. 386 of 1982
7th April, 1983
Moe, CJ.

Mr. M. Young for the Plaintiff.
Mr. G. Brown, Solicitor General, for the Defendant.

Belize Constitution Chapter 4 - Construction of Section 106 of the Belize Constitution - To whom does the authority to discipline public officers appointed under Section 106 of the Belize Constitution lie - Governor-General purporting to interdict a Section 106 public officer - Whether the purported actions of the Governor-General ultra vires Section 106 of the Belize Constitution - Whether an interdiction of a public officer amounts to an infliction of a disciplinary penalty - Suspension of full pay and requiring officer to be paid half-pay during period of interdiction - Whether such withholding of half salary amounts to a disciplinary penalty - Section 106 of the Belize Constitution.

J U D G M E N T

The Plaintiff is a public officer holding the post of Senior Economist. He received a letter dated 6th July, 1982 which stated, inter alia, that his dismissal from the Public Service was is contemplated on the charges set out in the said letter and in its final paragraph the letter read as follows: - "I am to inform you that pending your reply and until further order Her Excellency the Governor-General interdicts you from the performance of your duties and directs that while interdicted you shall be paid one-half of your salary with effect from the date following receipt of this letter."

The Defendant admits that by the letter the Governor-General interdicted the Plaintiff from his duties as Senior Economist and suspended payment of half of his salary. The Plaintiff now seeks a declaration that (1) the Governor-General's interdiction is unconstitutional and void, and (2) the Governor General's suspension of half of his salary is unconstitutional and void. The Defendant for his part seeks a declaration that the interdiction and suspension are constitutional and valid.

The Plaintiff's submission is (1) that the power to exercise disciplinary control over him at the time vested exclusively in the Public Services Commission by virtue of section 106 of the Constitution; (2) that any General Orders which purport to give the Governor-General disciplinary powers over public officers would be ultra vires and void to that extent; and (3) that power to interdict and suspend salary is a part of the jurisdiction to exercise disciplinary control over public officers.

The Defendant contends that (1) while section 106(1) of the Constitution vests certain powers, including the exercise of disciplinary control, over public officers in the Public Services Commission, subsection (3) thereof makes provision for procedures relating thereto to be established by the Governor-General, (2) the Governor-General had made regulations under that section 106 namely the General Orders for the Public Service Regulations and in paragraph 6 of Appendix A to those Regulations is set out a machinery to be followed in some cases until the Public Services Commission has come to a decision, (3) the machinery is not ultra vires the Constitution, but is the very machinery contemplated by the Constitution.

I set out first the relevant portions of section 106 of the Constitution. It provides, "(1) The power to appoint persons to hold or act in offices in the Public Service (including the power to confirm appointments) and subject to the provisions of section 111 of the Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Public Service Commission. (3) Subject to the provisions of this Constitution, the Governor-General may make regulations on any matter relating to - (e) measures to ensure discipline and to govern dismissal and retirement of public officers including the procedure to be followed."

In a judgment delivered this morning in Action No. 389 of 1982 I have held that the powers given to the Public Services Commission by section 106(1) of the Constitution are to the exclusion of any other person or authority. The power relevant to the consideration of this case is the power to exercise disciplinary control over public officers to whom the section applies. There is no retention of any such power or concurrent jurisdiction to exercise such a power lying in the Governor-General. I have shown in the judgment (supra) reasons why this cannot be so. In this case I would state that if it were so the Governor-General who, by the Constitution, unless it is therein specifically stated otherwise, acts upon the advice of the Cabinet or a Minister acting under the authority of the Cabinet, could by this means render abortive the whole intent and purpose of section 106 or even of the whole Chapter VIII of the Constitution. As rightly pointed out by counsel, the Governor-General may certainly make regulations relating to measures to ensure discipline and the procedures to be followed, but in my view it is the Public Services Commission which exercises the power of discipline or disciplinary control notwithstanding that it has to be in keeping with those regulations made by the Governor-General and thus following the procedures therein laid down.

I now turn to determine whether the action taken amounted to disciplinary control. As pointed out in the said judgment (supra) the Constitution has vested the Public Services Commission with two classes of functions: (1) to make appointments to the Service, promotions and transfers within the Service, and (2) to remove and exercise disciplinary control over members of the Service. We are concerned here with the second class which refers to the infliction of penalties. Disciplinary control clearly envisages penalties lesser than dismissal or removal from office.

Now, firstly, was interdiction the infliction of a penalty? I really do not imagine that anyone told to stay home until further order regards that as infliction of a penalty or a punishment. I hold that interdiction from duties is not the infliction of a penalty and thus not disciplinary control. Consequently the Plaintiff's claim for declaration (1) fails.

Secondly, was the suspension of half of salary infliction of a penalty? In my view penalty in this context means any punishment, suffering or disadvantage imposed. The Solicitor General contended that the Governor-General acted under paragraph 6 of Appendix A of the General Orders for the Public Service Regulations which paragraph is purely procedural. That while the paragraph does not empower the Governor-General to impose a punishment, withholding of salary is dependent on the outcome of disciplinary proceedings. I considered the submission in this way. Firstly, if withholding of salary is only a procedural step, when officer X has half his salary withheld until the Public Services Commission decides and after consideration the Commission dismissed him, does the withholding remain a procedural step or is it not what it always was, a penalty? Secondly, if it is a procedural step, when officer X has half his salary withheld, the Public Services Commission after consideration reprimands, and the Governor-General refunds only quarter. Does the withholding of the remaining quarter remain a procedural step or is it what it always was, the imposition of a penalty? I have noted also that elsewhere in the said Regulations, stoppage of an increment is referred to as a penalty. As I understand it, stopping an increment is withholding money from an officer and that is stated as a penalty. I reject the Defendant's contention and hold that suspension of half of an officer's salary is the imposition of a penalty.

The Plaintiff as a Senior Economist is one of those officers to whom section 106 of the Constitution applies. The power to exercise disciplinary control over him is vested in the Public Services Commission. Suspension of half of his salary amounted to disciplinary action taken against him. Such action was taken by a person not vested with the power to take it. In the result, I must hold that the suspension of half of the Plaintiff's salary by the Governor-General by the letter of the 6th July, 1982 was void, inoperative and of no effect. Plaintiff will have a declaration accordingly and his costs.

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