Antigua and Barbuda 1981 Constitution - Page 8 of 12

Table of Contents

CHAPTER VII. THE PUBLIC SERVICE

PART 1. The Public Service Commission

99. Establishment and composition of Commission

1. There shall be a Public Service Commission for Antigua and Barbuda (hereinafter in this section referred to as the Commission) which shall consist of a chairman and not less than two nor more than six other members who shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister:Provided that the Prime Minister shall consult the Leader of the Opposition before tendering any advice to the Governor-General for the purposes of this subsection.
2. A person shall not be qualified to be appointed as a member of the Commission if-
  1. he is a public officer;
  2. he is a member of either House of Parliament;
  3. he is below the age of twenty-five years; or
  4. he is not resident in Antigua and Barbuda.

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1. A member of the Commission shall be appointed to hold office for a term of two years.
2. Subject to the provisions of this section, the office of a member of the Commission shall become vacant at the expiration of the period for which he was appointed or if any circumstances arise that, if he were not a member of the Commission, would cause him to be disqualified to be appointed as such under subsection (2) of this section.
A member of the Commission may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour and shall not be so removed except in accordance with the provisions of this section.
A member of the Commission shall be removed from office by the Governor-General if the question of his removal from office has been referred to a tribunal appointed under subsection (6) of this section and the tribunal has recommended to the Governor-General that he ought to be removed from office for inability as aforesaid or for misbehaviour.
If the Prime Minister represents to the Governor-General that the question of removing a member of the Commission under this section ought to be investigated then-
1. the Governor-General shall appoint a tribunal which shall consist of a chairman and not less than two other members, selected by the Chief Justice from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from such a court; and
2. the tribunal shall enquire into the matter and report on the facts thereof to the Governor-General and recommend to him whether the member ought to be removed under this section.
If the question of removing a member of the Commission has been referred to a tribunal under this section, the Governor-General, acting in accordance with the advice of the Prime Minister, may suspend that member from the functions of his office and any such suspension may at any time be revoked by the Governor-General, acting in accordance with such advice as aforesaid, and shall in any case cease to have effect if the tribunal recommends to the Governor-General that the member should not be removed.
If the office of chairman of the Commission is vacant or if the person holding that office is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, they shall be exercised by such one of the other members of the Commission as may for the time being be designated in that behalf by the Governor-General, acting in accordance with the advice of the Prime Minister.
If at any time any member of the Commission is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Prime Minister, may appoint a person who is qualified to be appointed as a member of the Commission to act as a member, and any person so appointed shall, subject to the provisions of subsections (6) and (7) of this section, continue to act until the office in which he is acting has been filled or, as the case may be, until the holder thereof has resumed his functions or until his appointment to act has been revoked by the Governor-General, acting in accordance with the advice of the Prime Minister:Provided that the Prime Minister shall consult the Leader of the Opposition before tendering any advice to the Governor-General for the purposes of this subsection and of subsection (8) of this section.
A member of the Commission shall not enter upon the duties of his office until he has taken and subscribed the oath of allegiance and the oath of office.
The Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.
The Commission may, by regulation or otherwise, regulate its own procedure.
The Commission may, with the consent of the Prime Minister, confer powers or impose duties on any public officer or on any authority of the Government for the purpose of the exercise of its functions.
The Commission may, subject to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member and its proceedings shall not be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings:Provided that any decision of the Commission shall require the concurrence of a majority of all its members.
The Commission shall make an annual report on its activities to the Governor-General, who shall cause copies of the report to be laid before both Houses of Parliament.

100. Appointment etc. of public officers

Subject to the provisions of this Constitution, the power to appoint persons to hold or act in offices in the public service (including the power to make appointments on promotion and transfer and to confirm appointments), 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.
The Public Service Commission may with the approval of the Prime Minister by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under subsection (1) of this section to any one or more members of the Commission or to any public officer.
The provisions of this section shall not apply in relation to the following offices, that is to say-
1. any office to which section 101 of this Constitution applies;
2. the office of the Director of Public Prosecutions;
3. the office of the Director of Audit;
4. the office of the Attorney-General;
5. the office of the Supervisor of Elections;
6. any office to which section 103 of this Constitution applies;
7. any office in the Police Force.
No person shall be appointed under this section to, or to act in, any office of the Governor-General’s personal staff except with the concurrence of the Governor-General acting in his discretion.
The Public Service Commission shall not remove or inflict any punishment on a public officer on the grounds of any act done or omitted to be done by that officer in the exercise of a judicial function conferred upon him unless the Judicial and Legal Services Commission concurs therein.
In the performance if its functions the Public Service Commission shall act in a manner consistent with the general policy of the Government as conveyed to the Commission by the Prime Minister in writing.

101. Appointment etc. of permanent secretaries and certain other officers

This section applies to the offices of Secretary to the Cabinet, Permanent Secretary, head of a department of government, deputy head of a department of government, any office for the time being designated by the Public Service Commission as an office of a chief professional adviser to a department of government and any office for the time being designated by the Commission, after consultation with the Prime Minister, as an office the holders of which are required to reside outside Antigua and Barbuda for the proper discharge of their functions or as an office in Antigua and Barbuda whose functions relate to external affairs.
The power to appoint persons to hold or to act in offices to which this section applies (including the power to confirm appointments), and, subject to the provisions of section 107 of this 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 Governor-General, acting in accordance with the advice of the Public Service Commission:Provided that-
1. the power to appoint a person to hold or act in an office of permanent secretary on transfer from another such office carrying the same salary shall vest in the Governor-General, acting in accordance with the advice of the Prime Minister;
2. before the Public Service Commission tenders advice to the Governor-General with respect to the appointment of any person to hold an office to which this section applies (other than appointment to an office of permanent secretary on transfer from another such office carrying the same salary) it shall consult with the Prime Minister and if the Prime Minister signifies his objection to the appointment of any person to the office, the Commission shall not advise the Governor-General to appoint that person;
3. in relation to any office of Ambassador, High Commissioner or other principal representative of Antigua and Barbuda in any other country or accredited to any international organization the Governor-General shall act in accordance with the advice of the Prime Minister, who shall, before tendering any such advice in respect of any person who holds any public office to which appointments are made by the Governor-General on the advice of or after consultation with some other person or authority, consult that person or authority.
References in this section to a department of government shall not include the office of the Governor-General, the department of the Attorney-General, the department of the Director of Public Prosecutions, the department of the Director of Audit, the department of the Supervisor of Elections, the department of the Clerk of the Senate or of the House or the Police Force.

102. The Director of Audit

The Director of Audit shall be appointed by the Governor-General acting in accordance with the advice of the Public Service Commission, tendered after the Commission has consulted the Prime Minister and has obtained the agreement of the Prime Minister to the appointment of that person.
If the office of Director of Audit is vacant or if the holder of the office is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the Public Service Commission tendered after the Commission has consulted the Prime Minister and has obtained the agreement of the Prime Minister to the appointment, may appoint a person to act as Director of Audit.
The provisions of subsections (5) to (11) inclusive of section 87 of this Constitution (which relates to the appointment and removal of the Director of Public Prosecutions) shall apply in relation to the Director of Audit as they apply in relation to the Director of Public Prosecutions so, however, that in subsection (9) and (10) references to the Judicial and Legal Services Commission shall be read as references to the Public Service Commission.

103. Appointment etc. of magistrates, registrars and legal officers

This section applies to the offices of magistrates and registrars of the High Court and assistant registrars of the High Court and to any public office in the department of the Attorney-General (other than the public office of Attorney-General) and the department of the Director of Public Prosecutions (other than the office of Director) for appointment to which persons are required to be qualified to practise as a barrister or solicitor in Antigua and Barbuda and such other offices connected with the Court as Parliament may prescribe.
The power to appoint persons to hold or act in offices to which this section applies (including the power to confirm appointments) and, subject to the provisions of this 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 Governor-General acting in accordance with the advice of the Judicial and Legal Services Commission.

PART 2. The Police Service Commission

104. Establishment and composition of Commission

There shall be a Police Service Commission for Antigua and Barbuda which shall consist of a Chairman and not less than two nor more than six other members who shall be appointed by the Governor-General acting in accordance with the advice of the Prime Minister:Provided that the Prime Minister shall consult the Leader of the Opposition before tendering any advice to the Governor-General for the purposes of this subsection.
The provisions of subsections (2) to (15) inclusive of section 99 of this Constitution shall apply in relation to the Police Service Commission as they apply in relation to the Public Service Commission.

105. Appointment etc. of Police Officers

Subject to the provision of this section, the power to appoint persons to hold or act in offices in the Police Force (including appointments on promotion and transfer and the confirmation of appointments) and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Police Service Commission:Provided that the Commission may, with the approval of the Prime Minister and subject to such conditions as it may think fit, delegate any of its powers under this section to any one or more of its members or to the Commissioner of Police.
Before the Police Service Commission, or any person or authority to whom powers have been delegated under this section, appoints to an office in the Police Force any person who is holding or acting in an office power to make appointments to which is vested by this Constitution in the Public Service Commission, the Police Service Commission or that person or authority shall consult with the Public Service Commission.
Before the Police Service Commission makes an appointment to the office of Commissioner or Deputy Commissioner or a like post however designated it shall consult the Prime Minister, and a person shall not be appointed to such an office if the Prime Minister signifies to the Police Service Commission his objection to the appointment of that person to the office in question.
Before the Police Service Commission makes an appointment to the office of Superintendent or a like post however designated it shall consult the Prime Minister.
The power to appoint persons to hold or act in offices in the Police Force below the rank of Sergeant (including the power to confirm appointments) and, subject to the provisions of section 107 of this Constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such person from office shall vest in the Commissioner of Police.
The Commissioner of Police may, by directions given in such manner as he thinks fit and subject to such conditions as he thinks fit, delegate any of his powers under subsection (5) of this section, other than the power to remove from office or reduce in rank, to any other member of the Police Force.
A police officer shall not be removed from office or subjected to any other punishment under this section on the grounds of any act done or omitted by him in the exercise of any judicial function conferred on him unless the Judicial and Legal Services Commission concurs therein.
In this section references to the rank of Sergeant shall, if the ranks within the Police Force are altered (whether in consequence of the re-organisation or replacement of an existing part of the Force or the creation of an additional part), be construed as references to such rank or ranks as may be specified by the Police Service Commission by Order published in the Official Gazette, being a rank or ranks that in the opinion of the Commissioner most nearly correspond to the rank of Sergeant as it existed before the alteration.

PART 3. The Public Service Board of Appeal

106. Constitution of Board, etc

There shall be a Public Service Board of Appeal for Antigua and Barbuda (in this Part referred to as the Board) which shall consist of-
1. a chairman appointed by the Governor-General acting in his discretion;
2. two members appointed by the Governor-General acting in accordance with the advice of the Prime Minister who shall, before tendering that advice to the Governor-General, consult with the Leader of the Opposition;
3. one member appointed by the Governor-General after consultation with the appropriate bodies representing the public service; and
4. one member appointed by the Governor-General after consultation with the appropriate body representing members of the Police Force.
The provisions of subsections (2) to (8) inclusive of section 99 of this Constitution shall apply in relation to the Board as they apply in relation to the Public Service Commission except that, in so applying subsection (8) of that section, the provision whereby the Governor-General acts in accordance with the advice of the Prime Minister shall be read as a provision whereby the Governor-General acts in his discretion.
If at any time any member of the Board is for any reason unable to exercise the functions of his office, the Governor-General, acting in accordance with the advice of the person upon whose advice that member was appointed or, as the case may be, after consultation with the body that he had consulted before appointing that member, may appoint a person who is qualified to be appointed as a member of the Board to act as a member, and any person so appointed shall continue to act until the office in which he is acting has been filled or, as the case may be, until the holder thereof has resumed his functions or until his appointment to act has been revoked by the Governor-General acting in accordance with such advice or, as the case may be, after such consultation as above in this subsection:Provided that the Prime Minister shall consult the Leader of the Opposition before tendering any advice to the Governor-General under this subsection in respect of the appointment of any person to act for any member of the commission appointed under paragraph (b) of the subsection (1) of this section.
The Board shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.
In this section-
- “the appropriate bodies representing the public service” means the Antigua and Barbuda Civil Service Association or such other body representing the interests of public officers as the Governor-General may designate;
  
  “the appropriate body representing members of the Police Force” means the Police Welfare Association or such other body representing the interests of members of the Police Force as the Governor-General may designate.

107. Appeals in disciplinary cases

This section applies to-
1. any decision of the Governor-General acting in accordance with the advice of the Public Service Commission, or any decision of the Public Service Commission, to remove a public officer from office or to exercise disciplinary control over a public officer (including a decision made on appeal from or confirming a decision of any person to whom powers are delegated under section 100(2) of this Constitution);
2. any decision of any person to whom powers are delegated under section 100(2) of this Constitution to remove a public officer from office or to exercise disciplinary control over a public officer (not being a decision which is subject to appeal to or confirmation by the Public Service Commission);
3. any decision of the Public Service Commission to give such concurrence as is required by section 110(1) or (2) of this Constitution in relation to the refusal, withholding, reduction in amount or suspending of any pensions benefits in respect of an officer’s service as a public officer;
4. any decision of the Police Service Commission to remove a member of the Police Force from office or to exercise disciplinary control over such a member under section 105(1) of this Constitution;
5. if it is so provided by Parliament, any decision of the Commissioner of Police under subsection (5) of section 105 of this Constitution, or of a person to whom powers are delegated under subsection (6) of that section, to remove a police officer from office or to exercise disciplinary control over a police officer;
6. such decisions with respect to the discipline of any military, naval or air force of Antigua and Barbuda as may be prescribed by Parliament.
Subject to the provisions of this section an appeal shall lie to the Board from any decision to which this section applies at the instance of the public officer, police officer or member of the naval, military or air force in respect of whom the decision is made:Provided that in the case of any such decision as is referred to in subsection (1)(e) of this section, an appeal shall lie in the first instance to the Police Service Commission if it is so provided by Parliament, in which case the Commission shall have the like powers as are conferred on the Board by subsection (1) of section 108 of this Constitution.

108. Powers and procedure of Board

Upon an appeal under section 107 of this Constitution or any law enacted in pursuance of that section, the Board may affirm or set aside the decision appealed against or make any other decision which the authority or person from which the appeal lies could have made.
Every decision of the Board shall require the concurrence of a majority of all the members of the Board entitled to participate in the proceedings of the Board for the purpose of making that decision.
Subject to the provisions of subsection (2) of this section, the Board may by regulation make provision for-
1. the procedure of the Board;
2. the procedure in appeals under this Part;
3. excepting from the provisions of section 107(1) of this Constitution decisions in respect of public officers holding offices whose emoluments do not exceed such sums as may be prescribed by the regulations or such decisions to exercise disciplinary control, other than decisions to remove from office, as may be so prescribed.
Regulations made under this section may, with the consent of the Prime Minister, confer powers or impose duties on any public officer or any authority of the Government for the purpose of the exercise of the functions of the Board.
The Board may, subject to the provisions of this section and to its rules of procedure, act notwithstanding any vacancy in its membership or the absence of any member.

PART 4. PENSIONS

109. Pensions laws and protection of pensions rights

The law to be applied with respect to any pensions benefits that were granted to any person before 1st November 1981 shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.
The law to be applied with respect to any pensions benefits (not being benefits to which subsection (1) of this section applies) shall-
1. in so far as those benefits are wholly in respect of a period of service as a judge or officer of the Supreme Court or a public officer that commenced before 1st November 1981, be the law that was in force on that date; and
2. in so far as those benefits are wholly or partly in respect of a period of service as a judge or officer of the Supreme Court or a public office that commenced after 31st October 1981, be the law in force on the date on which that period of service commenced,
or any law in force at a later date that is not less favourable to that person.
Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law for which he opts shall for the purposes of this section, be deemed to be more favourable to him than the other law or laws.
All pensions benefits shall (except to the extent that they are by law charged upon and duly paid out of some other fund) be a charge on the Consolidated Fund.
In this section “pensions benefits” means any pensions, compensations, gratuities or other like allowances for persons in respect of their service as judges or officers of the Supreme Court or public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.
References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which such benefits may be granted or in which the grant of such benefits may be refused, the law regulating the circumstances in which such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.
In this section references to service as a judge are references to service as a judge of the Supreme Court and references to service as a public officer include service in an office established under section 12 of the Supreme Court Order.

110. Power to withhold pensions etc

Where under any law any person or authority has a discretion-
1. to decide whether or not any pensions benefits shall be granted; or
2. to withhold, reduce in amount or suspend any such benefits that have been granted,
those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the Public Service Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.
Where the amount of any pensions benefits that may be granted to any person is not fixed by law, the amount of the benefits to be granted to him shall be the greatest amount for which he is eligible unless the Public Service Commission concurs in his being granted benefits of a smaller amount.
The Public Service Commission shall not concur under subsection (1) or subsection (2) of this section in any action taken on the ground that any person who holds or has held the office of a judge of the Supreme Court, Director of Public Prosecutions or Director of Audit or Supervisor of Elections has been guilty of misbehaviour in that office unless he has been removed from that office by reason of such misbehaviour.
Before the Public Service Commission concurs under subsection (1) or subsection (2) of this section in any action taken on the ground that any person (who holds or has held any office to which, at the time of such action, section 103 of this Constitution applies) has been guilty of misbehaviour in that office, the Public Service Commission shall consult the Judicial and Legal Services Commission.
In this section “pensions benefits” means any pensions, compensations, gratuities or other like allowances for persons in respect of their service as judges or officers of the Supreme Court or public officers or for the widows, children, dependants or personal representatives of such persons in respect of such service.
In this section references to service as a public officer include service in an office established under section 12 of the Supreme Court Order.