Trinidad and Tobago 1976 Constitution (reviewed 2007) - Page 10 of 13

Table of Contents

CHAPTER 9. APPOINTMENTS TO, AND TENURE OF OFFICES

PART 1. Service Commissions, etc

Public Service Commission

120. Public Service Commission

There shall be a Public Service Commission for Trinidad and Tobago which shall consist of a Chairman, a Deputy Chairman and not less than two nor more than four other members.
The members of the Public Service Commission shall be appointed by the President, after consultation with the Prime Minister and the Leader of the Opposition.
The members of the Public Service Commission shall hold office in accordance with section 126.

121. Appointments, etc., of Public Officers

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 [and to enforce standards of conduct on such officers] shall vest in the Public Service Commission.
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 Service Commission concurs therein.
Before the Public Service Commission makes any appointment to an office to which this subsection applies it shall consult the Prime Minister.
A person shall not be appointed to an office to which subsection (3) applies if the Prime Minister signifies to the Public Service Commission his objection to the appointment of that person to that office.
Subject to subsections (6) and (7), subsection (3) applies to the offices of Permanent Secretary, Chief Technical Officer, Director of Personnel Administration, to a head of a department of government, to the chief professional adviser in a Ministry of government and to the office of Deputy to any of these offices.
Power to make appointments on transfer to the following offices shall vest in the Prime Minister:
1. any office of Permanent Secretary from one such office to another such office carrying the same salary;
2. any office the holder of which is required to reside outside Trinidad and Tobago for the proper discharge of his functions, and such offices in the Ministry of External Affairs as may from time to time be designated by the Prime Minister after consultation with the Public Service Commission.
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.
Before the Public Service Commission makes any appointment to or transfers a member of the staff of the Auditor General or Ombudsman it shall first consult with the Auditor General or Ombudsman, as the case may be.
In subsection (7) “Civil Service”, “Fire Service” and “Prison Service” means respectively the Civil Service established under the Civil Service Act, 1965, the Fire Service established under the Fire Service Act, 1965 and the Prison Service established under the Prison Service Act, 1965.

Police Service Commission

122. Police Service Commission

There shall be a Police Service Commission for Trinidad and Tobago which shall consist of a Chairman and four other members.
The members of the Police Service Commission shall be appointed by the President in accordance with this section.
The President shall, after consultation with the Prime Minister and Leader of the Opposition nominate persons, who are qualified and experienced in the disciplines of law, finance, sociology or management, to be appointed as members of the Police Service Commission.
The President shall issue a Notification in respect of each person nominated for appointment under subsection (3) and the Notification shall be subject to affirmative resolution of the House of Representatives.
The President shall make an appointment under this section only after the House of Representatives has approved the Notification in respect of the relevant person.
The President may in his own discretion appoint a Chairman of the Police Service Commission from among its members.
The Members of the Police Service Commission shall hold office in accordance with section 126, other than subsections (4) and (5).

122A. Removal of members

The President shall, after consultation with the Prime Minister and the Leader of the Opposition, terminate the appointment of a member of the Police Service Commission, if the member—
1. fails to attend four consecutive meetings without reasonable cause;
2. is convicted of a criminal offence which carries a penalty of six or more months of imprisonment in any court;
3. becomes infirm in mind or body;
4. fails to perform his duties in a responsible or timely manner;
5. fails to absent himself from meetings of the Police Service Commission where there is a conflict of interest;
6. demonstrates a lack of competence to perform his duties; or
7. misbehaves in office.
The President, in the exercise of his power under subsection (1)(d) to (g), may consider the report of a Joint Select Committee and the Police Service Commission laid in Parliament in furtherance of sections 66A(1)(e) and 66B respectively.
A member of the Police Service Commission shall not be removed from office except in accordance with this section.

123. Powers of the Police Service Commission

The Police Service Commission shall have the power to—
1. appoint persons to hold or act in the office of Commissioner and Deputy Commissioner of Police;
2. make appointments on promotion and to confirm appointments;
3. remove from office and exercise disciplinary control over persons holding or acting in the offices specified in paragraph (a);
4. monitor the efficiency and effectiveness of the discharge of their functions;
5. prepare an annual performance appraisal report in such form as may be prescribed by the Police Service Commission respecting and for the information of the Commissioner or Deputy Commissioner of Police; and
6. hear and determine appeals from decisions of the Commissioner of Police, or of any person to whom the powers of the Commissioner of Police have been delegated in relation to appointments on promotion or, as a result of disciplinary proceedings brought against a police officer appointed by the Commissioner of Police.
The Police Service Commission shall nominate persons for appointment to the offices specified in subsection (1)(a) and section 22(1) of the Police Service Act, 2006 in accordance with the criteria and procedure prescribed by Order of the President, subject to negative resolution of Parliament.
The Police Service Commission shall submit to the President a list of the names of the persons nominated for appointment to the offices of Commissioner or Deputy Commissioner of Police.
The President shall issue a Notification in respect of each person nominated under subsection (3) and the Notification shall be subject to affirmative resolution of the House of Representatives.
The Police Service Commission shall appoint the Commissioner or Deputy Commissioner of Police only after the House of Representatives approves the Notification in respect of the relevant office.
For the purpose of subsection (1)(d)-
1. the Commissioner of Police shall, every six months, submit a report in writing to the Police Service Commission on the management of the Police Service; and
2. the Police Service Commission shall have the power to call on the Commissioner of Police to produce documents pertaining to financial, legal and personnel matters in relation to the Police Service.
Notwithstanding subsection (6), the Police Service Commission may, on its own initiative, request a special report in writing from the Commissioner of Police at any time on any matter relating to the management of the Police Service, to which the Commissioner of Police shall respond in a timely manner.
The Police Service Commission may terminate the services of the Commissioner or a Deputy Commissioner of Police on any of the following grounds:
1. where the officer is absent from duty without leave for seven consecutive days, during which he has failed to notify the Police Service Commission of the cause of his absence, whether he holds a permanent, temporary, or contractual appointment;
2. breach of contract, where the officer is appointed on contract;
3. reported inefficiency based on his performance appraisal reports;
4. on dismissal in consequence of disciplinary proceedings, after giving him an opportunity to be heard;
5. where the officer holds a permanent appointment-
  1. on being retired on medical grounds;
  2. on being retired in the public interest; or
  3. on the abolition of office.
The procedure for the termination of the services of the Commissioner or a Deputy Commissioner of Police shall be prescribed by the Police Service Commission in accordance with section 129.
Notwithstanding section 132, no appeal shall lie to the Public Service Appeal Board in respect of a decision made by the Police Service Commission under this section.

123A. Powers of the Commissioner Police

Subject to section 123(1), the Commissioner of Police shall have the complete power to manage the Police Service and is required to ensure that the human, financial and material resources available to the Service are used in an efficient and effective manner.
The Commissioner of Police shall have the power to—
1. appoint persons to hold or act in an office in the Police Service, other than an officer referred to in section 123(1)(a), including the power to make appointments on promotion and to confirm appointments;
2. transfer any police officer; and
3. remove from office and exercise disciplinary control over police officers, other than an officer referred to in section 123(1)(a).
The functions of the Commissioner of Police under this section may be exercised by him in person or through any police officer of or above the rank of Superintendent acting under and in accordance with his general or special instructions.
In the performance of his functions under this section the Commissioner of Police shall act in accordance with the Police Service Act, 2006 and the regulations made thereunder.

Teaching Service Commission

124. Teaching Service Commission

There shall be a Teaching Service Commission for Trinidad and Tobago which shall consist of a Chairman and not more than four other members.
The members of the Teaching Service Commission shall be appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.
The members of the Teaching Service Commission shall hold office in accordance with section 126.

125. Appointment of teachers

Subject to the provisions of this Constitution, power to appoint persons to hold or act in public offices in the Teaching Service, established under the Education Act, 1966, 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 [and to enforce standards of conduct on such officers] shall vest in the Teaching Service Commission.

General Provisions on Service Commissions

126. Qualifications, Tenure of office, etc

A person who—
1. is a member of the House of Representatives or the Senate; or
2. holds or is acting in any public office or has held any public office within the period of three years preceding his proposed appointment,
is not qualified to hold the office of member of a Service Commission.
A person who has held office or acted as a member of a Service Commission shall not, within a period of three years commencing with the date on which he last held or acted in such an office, be eligible for appointment to any public office.
The office of a member of a Service Commission shall become vacant—
1. upon the expiration of five years from the date of his appointment or such shorter period, not being less than three years, as may be specified at the time of his appointment; or
2. where with his consent he is nominated for election to the House of Representatives or where he is appointed a Senator.
A member of a Service Commission, other than the Judicial and Legal Service Commission, may be removed from office by the President acting in his discretion for inability to discharge the functions of his office, whether arising from infirmity of mind or body or any other cause, or for misbehaviour.
A member of a Service Commission may not be removed from office except in accordance with the provisions of this section.
Before entering upon the duties of his office a member of a Service Commission shall take and subscribe the oath of office before the President or a person appointed by the President for the purpose.

127. Delegation of functions

A Service Commission may, with the approval of the Prime Minister and subject to such conditions as it may think fit, delegate any of its functions [deleted] other than any power conferred on the Commission by section 129, to any of its members or—
1. in the case of the Judicial and Legal Service Commission, to a Judge;
2. in the case of—
  1. the Public Service Commission, to any public officer or in respect of the Regional Health Authorities to the Boards of the Regional Health Authorities established under section 4 of the Regional Health Authorities Act;
  2. the Teaching Service Commission, to any public officer.
3. [deleted by Act No. 6 of 2006]
In this section and in section 129, as regards any matter concerning the holder of any office referred to in section 121(5) or 123(3) a reference to “public officer” includes a reference to a Judge as well as a retired public officer.

128. Consultation with other Service Commissions

Before a Service Commission appoints to an office a person holding or acting in any office, power to make appointments to which is vested by this Constitution in another Service Commission, it shall consult that other Commission.

129. Powers and procedure of Service Commissions and protection from legal proceedings

Subject to subsection (3), a Service Commission may, with the consent of the Prime Minister, by regulation or otherwise regulate its own procedure, including the procedure for consultation with persons with whom it is required by this Constitution to consult, and confer powers and impose duties on any public officer or in the case of the holder of an office referred to in section 111(2), a Judge or on any authority of the Government, for the purpose of the discharge of its functions.
At any meeting of a Service Commission three members shall constitute a quorum.
Repealed
No penalty may be imposed on any public officer except as a result of disciplinary proceedings.
Notwithstanding subsection (4), where an officer is convicted of a criminal charge in any court and the time allotted for an appeal has elapsed or, if the officer has appealed, the appeal process has been completed or an order has been made in the matter under section 71 of the Summary Courts Act, a Service Commission may consider the relevant proceedings on such charge and if it is of the opinion that the officer ought to be dismissed or subjected to some lesser punishment in respect of the conduct which led to his conviction on the criminal charge or to the making of the order, the Commission may thereupon dismiss or otherwise punish the officer without the institution of any disciplinary proceedings.
In furtherance of subsection (5)—
1. a certificate of conviction issued by the court shall be sufficient evidence of an officer’s conviction for an offence;
2. a certified copy of an order made under section 71 of the Summary Courts Act shall be sufficient evidence of the commission by the officer of the offence for which he was charged.
An officer referred to in subsection (5) shall be entitled to show cause why he should not be dismissed from office.
A reference in subsection (5) to a Service Commission also includes a reference to the Commissioner of Police, as the case may be.

PART 2. Public Service Appeal Board

130. Constitution of Appeal Board

There shall be a Public Service Appeal Board (hereinafter referred to as “the Appeal Board”) to which appeals shall lie from such decisions against public officers as are specified in section 132.
The Appeal Board shall consist of a Chairman appointed by the President after consultation with the Chief Justice and two other members appointed by the President after consultation with the Prime Minister and the Leader of the Opposition.
The Chairman shall be a Judge or former Judge or a citizen of Trinidad and Tobago who has 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 any such court.
One member of the Appeal Board shall be a retired public officer.

131. Tenure of office, etc

Section 126 (which relates to qualifications for appointment, eligibility for public office and the term and tenure of office of members of Service Commissions) shall apply to members of the Public Service Appeal Board as they apply to members of a Service Commission.
Before entering upon the duties of his office, a member of the Appeal Board shall take and subscribe the oath of office before the President or a person appointed by the President for the purpose.

132. Appeals in disciplinary cases

An appeal shall lie to the Public Service Appeal Board from any decision of a Service Commission, or of any person to whom the powers of the Commission have been delegated, as a result of disciplinary proceedings brought against a public officer.
An appeal under subsection (1) shall lie to the Appeal Board at the instance of the public officer in respect of whom the decision is made.
The Appeal Board may, where it considers it necessary that further evidence be adduced—
1. order such evidence to be adduced either before the Board or by affidavit; or
2. refer the matter back to the relevant Service Commission to take such evidence and—
  1. to adjudicate upon the matter afresh; or
  2. to report for the information of the Appeal Board specific findings of fact.
Where a matter is referred to a Service Commission under paragraph (b) of subsection (3), the matter, so far as may be practicable or necessary, shall be dealt with as if it were being heard at first instance.
Upon the conclusion of the hearing of an appeal under this section, the Appeal Board may—
1. affirm, modify or amend the decision appealed against; or
2. set aside the decision; or
3. substitute any other decision which the Service Commission could have made.
Every decision of the Appeal Board shall require the concurrence of the majority of its members.
The Appeal Board may by regulations make provision for—
1. procedure of its own; and
2. the procedure in appeals under this section.
With the consent of the Prime Minister, the Appeal Board may by regulation or otherwise confer powers and impose duties on any public officer or any authority of the Government of Trinidad and Tobago for the purpose of the exercise of the functions of the Appeal Board.
This section and sections 130 and 131 shall be, in addition to and not in derogation of any other provisions for review of the decision of any Service Commission.

Pensions

133. Protection of pension rights

Subject to section 134 the law applicable to any benefits to which this section applies shall, in relation to any person who has been granted or who is eligible for the grant of such benefits, be that in force on the relevant date or any later law that is not less favourable to that person.
In this section, “the relevant date” means—
1. in relation to any benefits granted before the commencement of this Constitution the date prescribed by section 100 of the former Constitution;
2. in relation to any benefits granted or to be granted on or after the commencement of this Constitution to or in respect of any person who was a public officer before that date, the commencement of this Constitution;
3. in relation to any benefits granted or to be granted to or in respect of any person who becomes a public officer on or after the commencement of this Constitution the date on which he becomes a public officer.
Where a person is entitled to exercise an option as to which of two or more laws shall apply in his case, the law specified by him in exercising the option shall, for the purposes of this section be deemed to be more favourable to him that the other law or laws.
Any benefit to which this section applies, not being a benefit that is a charge on some other public fund of Trinidad and Tobago, shall be a charge on the Consolidated Fund.
A reference in this section to the law applicable to any benefits includes, without prejudice to the generality of the expression, a reference to any law relating to the time at which and the manner in which any person may retire in order to become eligible for those benefits.
For the purposes of this section, service as President or as a Judge shall be deemed to be public service.
This section applies to any benefits payable under any law providing for the grant of pensions, gratuities or compensation to persons who are or have been public officers in respect of their service in the public service, or to the widows, children, dependants or personal representatives of such persons in respect of such service.

134. Powers of Commissions in relation to grant of pensions, etc

Where under any law an authority has power to withhold, reduce in amount or suspend any benefits to which this section applies, that power shall not be exercised without the approval specified in subsection (2), (3) or (3A).
Subject to subsection (3A), where a person who has been granted benefits, or who is eligible for benefits, in respect of public service was at the time he ceased to be a public officer subject to the jurisdiction of the Judicial and Legal Service Commission, the Police Service Commission or the Teaching Service Commission, the power referred to in subsection (1) shall not be exercised with respect to those benefits without the approval of that Commission.
Subject to subsection (3A), where a person who has been granted benefits, or who is eligible for benefits, in respect of public service, was not at the time he ceased to be a public officer subject to the jurisdiction of the Judicial and Legal Service Commission, the Police Service Commission, or the Teaching Service Commission, the power referred to in subsection (1) shall not be exercised without the approval of the Public Service Commission.
Where a person, who is eligible for benefits in respect of public service, was at the time he ceased to be a public officer subject to the jurisdiction of the Commissioner of Police, the power referred to in subsection (1) with respect to those benefits shall not be exercised without the approval of the Commissioner.
No benefits to which this section applies that have been granted to or in respect of any person who is or has been the holder of an office referred to in section 136(12) to (16) or for which any such person or his widow, children, dependants or his personal representatives may be eligible, shall be withheld, reduced in amount or suspended on the ground that that person has been guilty of misbehaviour, unless that person has been removed from his office under this Constitution by reason of such misbehaviour.
For the purposes of this section, service as a Judge, shall be deemed to be public service.
This section applies to any benefits payable under any law providing for the grant of pensions, gratuities or compensation to persons who are or have been public officers in respect of their service in the public service or to the widows, children or personal representatives of such persons in respect of such service.

Special Offices

135. Appointments of principal representatives of Trinidad and Tobago

The President acting in accordance with the advice of the Prime Minister shall have power to appoint persons to the offices to which this section applies and to remove persons from any such office.
Before tendering any advice for the purposes of this section in relation to any person who holds or is acting in any public office other than an office to which this section applies, the Prime Minister shall consult the appropriate Service Commission.
This section applies to the office of—
1. Ambassador or High Commissioner; and
2. any principal representative of Trinidad and Tobago in any other country.

136. Tenure of special offices

The holder of an office to which this subsection and subsections (3) to (11) apply (in this section referred to as “the officer”) shall vacate his office on attaining the age of sixty-five years or such other age as may be prescribed.
Notwithstanding that he has attained the age at which he is required by or under subsection (1) to vacate his office, a Judge may, with the permission of the President, acting in accordance with the advice of the Chief Justice, continue in office for such period after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.
Nothing done by the officer shall be invalid by reason only that he has attained the age at which he is required under this section to vacate his office.
The officer shall vacate his office if with his consent, he is appointed a Senator or nominated for election to the House of Representatives.
The salaries and allowances payable to the holders of the offices to which subsection (1) and subsections (3) to (11) apply or an office referred to in subsections (13) to (16) shall be a charge on the Consolidated Fund.
The salary and allowances payable to the holder of any office to which subsection (1) and subsections (3) to (11) apply or an office referred to in subsections (13) to (16) and his other terms of service shall not be altered to his disadvantage after his appointment and for the purposes of this subsection, in so far as the terms of service of any person depend upon the option of that person, the terms for which he opts shall be taken to be more advantageous to him than any other terms for which he might have opted.
The officer may be removed from office only for inability to discharge the functions of his office whether arising from infirmity of mind or body or any other cause, or for misbehaviour and shall not be so removed except in accordance with the provisions of subsection (10).
A decision that the question of removing the officer from office ought to be investigated may be made at any time—
1. in the case of the Ombudsman by resolution of the House of Representatives; and
2. in any other case by the President either on his own initiative or upon the representation of the Prime Minister.
Where a decision is made under subsection (8) that the question of removing the officer from office ought to be investigated, then—
1. the President shall appoint a Tribunal which shall consist of a Chairman and not less than two other members all of whom shall be selected by the President acting in accordance with the advice of the Judicial and Legal Service Commission 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 any such court; and
2. the Tribunal shall inquire into the matter and report on the facts to the President and advise the President whether the officer ought to be removed from office on any of the grounds specified in subsection (7).
Where the question of removing the officer from office is referred to a Tribunal appointed under subsection (9) and the Tribunal advises the President that the officer ought to be removed from office, the President shall, by writing signed by him, remove the officer from office.
Where the question of removing the officer from office has been referred to a Tribunal under subsection (9), the President, after consultation with the Judicial and Legal Service Commission, may suspend the officer from performing the functions of his office and any such suspension may at any time be revoked by the President and shall in any case cease to have effect if the Tribunal advises the President that the officer ought not to be removed from office.
Subsection (1) and subsections (3) to (11) apply to the office of Auditor General and to such other offices as may be prescribed.
Subsections (1) to (6) apply to the office of Judge.
Subsection (1) and subsections (3) to (6) apply to the office of Director of Public Prosecutions, Chief Parliamentary Counsel and Solicitor General.
Subsections (5) to (11) apply to the office of Ombudsman, a member of the Elections and Boundaries Commission, a member of the Integrity Commission, a member of a Service Commission other than the Police Service Commission, a member of the Salaries Review Commission and to such other offices as may be prescribed.
Subsections (5) and (6) apply to the Police Service Commission and the office of President.

137. Removal from office of Judge

A Judge may be removed from office only for inability to perform the functions of his office, (whether arising from infirmity of mind or body or any other cause), or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.
A Judge shall be removed from office by the President where the question of removal of that Judge has been referred by the President to the Judicial Committee and the Judicial Committee has advised the President that the Judge ought to be removed from office for such inability or for misbehaviour.
Where the Prime Minister, in the case of the Chief Justice, or the Judicial and Legal Service Commission, in the case of a Judge, other than the Chief Justice, represents to the President that the question of removing a Judge under this section ought to be investigated, then—
1. the President shall appoint a tribunal, which shall consist of a chairman and not less than two other members, selected by the President, acting in accordance with the advice of the Prime Minister in the case of the Chief Justice or the Prime Minister after consultation with the Judicial and Legal Service Commission in the case of a Judge, 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 any such court;
2. the tribunal shall enquire into the matter and report on the facts thereof to the President and recommend to the President whether he should refer the question of removal of that Judge from office to the Judicial Committee; and
3. where the tribunal so recommends, the President shall refer the question accordingly.
Where the question of removing a Judge from office has been referred to a tribunal under subsection (3), the President, acting in accordance with the advice of the Prime Minister in the case of the Chief Justice or the Chief Justice in the case of a Judge, other than the Chief Justice, may suspend the Judge from performing the functions of his office, and any such suspension may at any time be revoked by the President, acting in accordance with the advice of the Prime Minister in the case of the Chief Justice or the Chief Justice in the case of a Judge, other than the Chief Justice, and shall in any case cease to have effect—
1. where the tribunal recommends to the President that he should not refer the question of removal of the Judge from office to the Judicial Committee; or
2. where the Judicial Committee advises the President that the Judge ought not to be removed from office.