Privy Council Appeal No 33 of 2007
Dattatreya Panday
Appellant
v.
The Judicial and Legal Service Commission
Respondent
FROM
THE COURT OF APPEAL OF
MAURITIUS
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 1st December 2008
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Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Carswell
Lord Mance
Sir Paul Kennedy
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[Delivered by Lord Mance]
Introduction
1. By this appeal, Mr Dattatreya Panday renews his application for leave judicially to review the decision of the Judicial and Legal Service Commission (“the Commission”) taken on 2 March 2006 to terminate his appointment as a temporary District Magistrate. His application was refused by the Supreme Court (Lam Sheen Leen J and Balglobin J) on 31 October 2006. Mr Panday’s temporary appointment derived from a letter dated 25 August 2003 in which the Commission (through its acting secretary) wrote as follows:
“I am directed to inform you that the Judicial Legal Service Commission [sic] has decided to offer you appointment as Temporary District Magistrate in the Judiciary with effect from 2 September 2003, with salary at the rate of Rs 22,400 [discounted to Rs 21,550 until 30 June 2004] …….
Your employment is liable to termination by one month’s notice on either side and will not give you any claim to permanent employment.
The temporary appointment will be subject to the laws and regulations governing the public service of Mauritius and to the Judicial Legal Service Commission regulations for the time being in force as appropriate. You should understand that your whole time will be at the disposal of the Government and that you will not be permitted to undertake private work for reward. ….”
2. During 2004 the Master and Deputy Master of the Supreme Court received complaints about Mr Panday’s performance of his functions. In August 2004 Mr Panday was summoned to see the Chief Justice and given a warning to improve. Mr Panday by letter dated 17 August 2004 both expressed his good intentions and willingness to learn and offered to resign if asked. The Chief Justice accepted the former and returned the letter. Nevertheless, in October 2004, Mr Panday was told once again by the Chief Justice and Master that his work was not satisfactory. At some further unspecified date, apparently after 18 October 2005, the Master again contacted Mr Panday, after speaking to the Chief Justice, with a request that Mr Panday improve his performance. The Master has said in an affidavit sworn 5 May 2006 that he also brought certain specific matters to Mr Panday’s attention on this occasion. Mr Panday denies this, and says that the exhortation remained unspecific despite his request for details.
3. The Commission’s decision to terminate Mr Panday’s appointment was reached without any further communication with Mr Panday, and in particular without communicating to him the considerations which led the Commission to consider taking such a step or giving him an opportunity to provide explanations or make contrary representations. Through the Chief Justice, the Commission on 3 March 2006 invited Mr Panday to resign rather than have his appointment terminated, but the Commission’s decision had already been taken on 2 March 2006, and, when Mr Panday refused to resign, that decision was confirmed in writing to him by letter dated 10 March 2006.
4. Mr Panday submits that the termination of his appointment was a breach of the Constitution, in that it involved a breach either of the Regulations made by the Commission under the Constitution and referred to in his letter of appointment or of the general requirements of procedural fairness and justice. The Supreme Court concluded in the light of its previous decision in Oozeerally v. The Judicial and Legal Service Commission 1981 MR 444; 1981 SCJ 419 (Lallah J) that the regulations had no application to temporary magistrates. The Court further concluded that there was no basis for implying into the terms of employment of a temporary magistrate like Mr Panday any requirement that such employment should only be terminated for good cause or after giving him an opportunity to demonstrate that no such cause existed, and that there was no need to give any reason to terminate his temporary employment “albeit that there seemed to be good reasons to put an end” to it. It also observed that, even if there had been a need for a hearing, “this would have been very informal” and that a hearing “with all the rigour of a court of law” would only have been required if the Commission had been dismissing Mr Panday for misconduct as provided under the regulations “which is not the case in hand”.
The law
5. The Commission is created by Chapter VIII of the Constitution and consists under s.85(1) of the Chief Justice and three other members. S.86 of the Constitution (replacing and re-enacting s.81(1) of the Mauritius Constitution Order 1966) provides that “Power to appoint persons to hold or act in offices [specified in the Second Schedule to the Constitution] (including power to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove such persons from office shall vest in the Judicial and Legal Service Commission”. The Second Schedule specifies various offices including “Magistrate (including the Presiding Magistrate or a Magistrate of the Intermediate Court or of the Industrial Court or a Senior District Magistrate”. S.114(1) provides that in the Constitution “a reference to the holder of an office by the term designating his office shall be construed as including a reference to any person for the time being lawfully acting in or exercising the functions of that office”. S.116(1) provides, with obvious relevance to s.86, that “References in this Constitution to the power to remove a public officer from his office shall be construed as including references to any power conferred by any law to require or permit that officer to retire from the public service and to any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be renewed”. Under s.118(1) (replacing and re-enacting s.87(1) of the Mauritius Constitution Order 1966) the Commission has power by regulations to make provision for regulating and facilitating its performance of its functions under the Constitution. S.118(3) provides that “Subject to this section, [the] Commission may regulate its own procedure”.
6. The Commission’s power under s.87(1) of the Mauritius Constitution Order 1966 was exercised by making the Judicial and Legal Service Commission Regulations (GN 90/67 – 12 August 1967). By virtue of s.5 of the Mauritius Independence Order 1968, these Regulations now take effect, subject to any necessary changes in wording and format to achieve conformity with the present Constitution, as if made under s.118(1) of the present Constitution. Regulation 2 provides that “In these regulations – “office” means any office to which section 86 of the Constitution applies”. Regulation 7 provides that, “For the purpose of making appointments to vacancies to any office …. in accordance with its powers under the Constitution, the Commission shall consider the eligibility of all officers for promotion, may interview candidates for such appointments and shall in respect of each candidate consider, amongst others, the following matters – (a) his qualifications; (b) his general fitness; (c) any previous employment of the candidate in the public service or in private practice”. Regulation 8 deals with situations where an officer “has attained the age at which he can, under any enactment lawfully be required to retire from the public service”; if it appears to the Chief Justice that the officer ought to be called upon to retire, then he “shall report the matter together with the reasons therefore to the Commission and the Commission shall decide whether such officer should be called upon to retire”.
7. Regulation 9 provides that
“9(1) Notwithstanding regulation 8, where it is represented to the Commission or the Commission considers it desirable in the public interest that an officer ought to be required to retire from the public service on grounds which cannot suitably be dealt with by the procedure prescribed by these regulations, it shall call for a full report from the Chief Justice …..
(2) Where, after considering such a report and giving the officer an opportunity of submitting a reply to the grounds on which his retirement is contemplated, and having regard to the conditions of the public service, the usefulness of the officer thereto, and all the other circumstances of the case, the Commission is satisfied that it is desirable in the public interest so to do, it shall direct that the officer should retire.”
Part IV (regulations 11 to 21) headed “Discipline” deals extensively with the procedure to be followed in cases where an officer appears to have committed an offence against any law or otherwise to have misconducted him- or herself; it provides for a full opportunity to know and rebut any such case before the Commission in the course of any disciplinary proceedings.
Analysis
8. Their Lordships are indebted to counsel on both sides for their succinct and helpful submissions. Their Lordships start with the Constitution. The sections which are potentially relevant are sections 85 and 86, read with ss.114 and 116. Any suggestion that temporary magistrates fall entirely outside these sections would face a self-evident problem. It was the Commission which both appointed Mr Panday and claimed to terminate his appointment. If the appointment was not made under section 86, on what basis was the Commission acting in making it? Mr Boolell for the Commission argued that s.114 was of no relevance to temporary officers. Their Lordships do not accept the argument, but it becomes irrelevant when Mr Boolell accepts, in their Lordships' view clearly correctly, that a temporary magistrate is a person holding or acting in an office pursuant to an appointment made by the Commission under s.86.
9. The Supreme Court rejected Mr Panday's case on the simple basis that his appointment was temporary and subject to one month's notice and could therefore be terminated at will by giving such notice. That would be the situation if his appointment had been purely contractual and subject only to private law. It is true that the contractual aspect of Mr Panday's appointment cannot be entirely ignored. Thus the provision for one month's notice regulates Mr Panday's freedom to give up his functions, and on any view it also restricts the Commission's freedom to remove him from office in the absence of misconduct or incapacity. But its basis in the Constitution and the role of the Commission give Mr Panday's appointment a public law aspect which also cannot be ignored.
10. In Horace Fraser v. Judicial and Legal Services Commission and The Attorney General [2008] UKPC 25 (6 May 2008), a magistrate was appointed in St Lucia for a period of one year but with a contractual proviso giving a right to determine on three months' notice or payment of one month's salary. The Constitution of Saint Lucia gave the Judicial and Legal Services Commission the power to exercise disciplinary control over persons holding the office of magistrate and the power to remove such persons from office. The magistrate was summarily dismissed from office without any appropriate procedure being followed by the Commission, but reliance was placed on the contractual proviso to minimise the resulting liability. The Board held that “removal” from office included bringing a magistrate’s engagement to an end against his will prior to its natural expiry, and that the magistrate had constitutional protection against removal from office which operated over and above the contractual proviso.
11. The present case is a fortiori. Although Mr Panday’s temporary appointment did not specify any natural expiry date, but was subject at any time to one month’s notice, s.116 of the Constitution gives “removal” an expanded definition that includes “any power or right to terminate a contract on which a person is employed as a public officer and to determine whether any such contract shall or shall not be removed”. That covers a decision by the Commission to terminate Mr Panday’s appointment by giving a month’s notice.
12. In these circumstances, Mr Boolell’s case refined itself to the submission that the Regulations had no application, and that s.86 of the Constitution conferred on the Commission a very broad freedom as to how to proceed, subject only to limits based on procedural fairness which had not, he submitted, been exceeded. In support of his submissions Mr Boolell points out that s.86 refers expressly to the Commission's role in relation to appointments made “subject to confirmation”, and observes, correctly as their Lordships accept, that the Commission must be entitled in such a context to look generally at any factors bearing on the general suitability or otherwise of a judicial officer to have his or her appointment confirmed.
13. Mr Boolell also suggests, with reference to certain historical and specimen material, that there are understood to be three grades or progressions of appointment: temporary, subject to confirmation and permanent. However, their Lordships are not satisfied that there is now, either in law or in practice, any rigid schema of this nature in relation to judicial officers. What matters is, first, what has been agreed and done in any particular case. This, when ascertained, has then to be viewed against the relevant constitutional background. It is true that, in relation to other public service officers, the Public Service Commission Regulations GN 76/67 – 12 August 1967 provide that “All first appointments to pensionable offices on permanent terms shall be on 12 months' probation” (Reg. 21(1)). But the absence of any equivalent Regulation in relation to judicial officers is significant. What is present instead is the contractual provision according to which Mr Panday's appointment was “temporary”.
14. It seems clear that the Commission on 2 March 2006 formed the view that Mr Panday was not suitable for further employment as a magistrate, and that his temporary appointment should be brought to an end on that basis. The Supreme Court relied upon its previous decision in Oozeerally when accepting Mr Boolell’s submission that the Regulations have no relevance in this context. In Oozeerally the magistrate was offered “temporary employment” subject to one month’s notice, and the Chief Justice formed the view that he had tried and decided four cases in a manner calculated to bring discredit on the administration of justice and reported the matter to the Commission accordingly. The Commission gave the magistrate an opportunity to make representations with a view to deciding whether grounds existed for terminating his contract by giving one month’s notice. The magistrate sought an injunction restraining the Commission from following this course on the ground that the Commission was bound to institute disciplinary proceedings against him under the Regulations. Lallah J refused the injunction, holding, firstly, that the disciplinary regulations had no application to a temporary magistrate, and, secondly, that there was no other ground for any complaint about the course which the Commission was proposing to follow.
15. In so far as the first ground rested on a verbal distinction between the “temporary employment” for which the magistrate was engaged and “appointment proper” to which the Regulations could apply, the Board would not accept the reasoning (and in any event notes that no such distinction could be drawn in this case, where Mr Panday was given a “temporary appointment”). Circumstances may arise in relation to temporary magistrates which could call for the operation of the disciplinary regulations. One example would be a suspected incident of corruption in the course of such a magistrate’s duties, where this was the only suggested basis for termination of his appointment. But the temporary nature of an appointment permits removal for reasonable cause, of which the Commission is the judge: Thomas v. Attorney General of Trinidad and Tobago [1982] AC 113, 126H, per Lord Diplock. So it is open to the Commission, providing it follows a proper procedure, to form a view that the appointment should be brought to an end because of unsuitability for permanent appointment not involving any conclusion of misconduct.
16. Mr Guthrie QC submits on Mr Panday’s behalf that there was in the present case a conclusion amounting to a finding of misconduct, and one which it was only open to the Commission under its own Regulations to reach if it first complied with the procedures set out in Regulations 11 to 21. The Board does not accept that as the correct analysis. So far as appears, the Commission was not purporting to base itself on any conclusion that there had been misconduct. It was undoubtedly dissatisfied with Mr Panday’s performance of his duties, but that is not the same thing.
17. The only Regulation which it appears to the Board could apply to a situation such as the present is Regulation 9. This applies where the Commission “considers it desirable in the public interest that an officer ought to be required to resign on grounds which cannot suitably be dealt with by the procedure prescribed by these regulations”. The procedure provides for a full report from the Chief Justice and for the officer to be given the opportunity to submit a reply to such report. If the Commission remains of the view that it is desirable that the officer should retire, then “it shall direct that the officer should retire”. Regulation 9 does not state explicitly what happens if the officer then refuses to submit notice of retirement, thereby giving one month’s notice, but the implication must be that he could be treated as having retired at the expiry of such a notice period. In the present case, Mr Panday was called on to retire, but refused. However, he was not previously given sight of the report (if any) made by the Chief Justice, still less an opportunity to make representations upon it.
18. In their Lordships’ view, there is a strong case for saying that Regulation 9 governed the present case. Their Lordships would determine this appeal on that simple basis. But they add some observations about the position upon the alternative hypothesis for which Mr Boolell contended, namely that the Regulations do not apply to a situation like the present. The Commission would on that hypothesis have been faced with a situation outside the Regulations which it had made under s.118 to regulate and facilitate its performance of its constitutional functions under ss.86 and 116(1), but nonetheless within the scope of its constitutional functions under those sections. The Commission would be free to decide how to proceed, subject, as Mr Boolell accepts, to its public law duty to act fairly and in accordance with natural justice. However, the Board considers that assistance as to what that would and should mean in practice can, as Mr Guthrie submitted, be derived by analogy from the Commission’s own Regulations. In any event, the need for a report to the Commission from those with knowledge or information about the relevant matters and issues, for communication of the substance of such matters and issues to the judicial officer affected to enable him or her to respond, and for consideration of any response by the Commission – these are all elementary aspects of procedural fairness before the taking of any final decision by the Commission whether or not to continue or to terminate even a temporary appointment such as the present.
19. Turning to the facts, some form of report by the Chief Justice presumably preceded the Commission’s decision of 2 March 2006. But its contents are unknown, the substance of the relevant matters and issues was never communicated to Mr Panday and he had no opportunity to respond upon it before the decision. The evidence now filed before the Board, which it is unnecessary for the Board to detail here, demonstrates beyond question that there was much that Mr Panday could and would no doubt have said in response, had he been given any opportunity. It is impossible to suggest that, had the matter been fairly conducted, whether under Regulation 9 or in accordance with general common law principles of fairness, the outcome before the Commission would have been inevitable and that Mr Panday’s temporary appointment would have been bound to be terminated, and no such suggestion was made by Mr Boolell.
20. In these circumstances, whether or not the Regulations applied, it is unnecessary to say much about Mr Guthrie’s alternative and more fundamental submission that the appointment of a magistrate whose appointment is temporary and subject to termination by one month’s notice is as such unconstitutional. The Board did not hear very detailed argument on this submission, but it faces some formidable obstacles. First, the Board notes that s.86 itself contemplates that judicial officers may be appointed on terms requiring confirmation by the Commission. So, an initial “temporary” period of appointment cannot on any view be impermissible. Second, with regard to the potential (and in the event actual) longer term aspect of Mr Panday’s appointment, the Board notes that under the Westminster style constitutions in issue in Hinds v. The Queen [1977] AC 195 and Horace Fraser the Board accepted the permissibility of even a short fixed term in the case of members of the lower judiciary. (The availability of judicial review in a case of non-renewal of a fixed term without a proper procedure or proper grounds was not in issue in those cases, and is not a matter which the Board needs to address in this case.) The Constitution of Mauritius (in contrast to the constitution in issue in Horace Fraser) expressly extends the role of the Commission to non-renewal as well as termination of an appointment: s.116(1). That being so, Mr Panday had the assurance, under the language of the Constitution itself, that his appointment would continue, unless the independent Commission, after following appropriate procedures, came to the view that there was reasonable cause not to do so. The Board finds it difficult in these circumstances to see any basis for a conclusion that Mr Panday’s temporary appointment as a magistrate was as such unconstitutional. It is true that the senior judiciary enjoy greater security of tenure, but that is a feature of Westminster style constitutions: see Hinds v. The Queen [1977] AC 195, 218F-219D, per Lord Diplock and Horace Fraser, para. 14.
21. The purported termination of Mr Panday’s appointment was for the reasons set out in paragraphs 1 to 19 procedurally unfair and so ineffective: see McLaughlin v. Governor of the Cayman Islands [2007] UKHL 50; [2007] 1 WLR 2839. Mr Panday’s pleaded claim was for reinstatement. It remained so until the appeal came before the Board, when Mr Guthrie announced for the first time that Mr Panday had – in June 2007 when his application for special leave was decided and in the light of advice given to him then - decided that his future did not lie in a judicial career. On that basis Mr Guthrie now submitted that Mr Panday’s appointment should be regarded as continuing until the end of June 2007, i.e. for the period during which he was ready, willing and able to perform his magisterial functions, and that he should receive 14 months’ salary up to (but not after) that date, giving credit for any alternative or substitute earnings he may have earned during those 14 months in accordance with the approach indicated in McLaughlin. Mr Guthrie did not suggest that Mr Panday should receive any award of damages in respect of the period after the application for special leave. He did however ask that there should be an award of general constitutional damages on the lines of those allowed by the Board in Horace Fraser and Angela Innis v. Attorney General of Saint Christopher and Saint Nevis [2008] UKPC 42. He sought remission of the matter to the Supreme Court for assessment of the monetary awards to be made on these bases.
22. Mr Boolell raises as an initial objection to any award, whether of salary or damages, that any such claim should be pursued in separate civil proceedings, in the light of any judgment given by the Board. He referred to D. Hurnam v. The State of Mauritius 2003 SCJ 54 Record No. 606, where the Supreme Court took a restrictive view of the claims for compensation that could appropriately be pursued under s.17 of the Constitution, which provides for redress in respect of contraventions of ss.3 to 16 of the Constitution. The present case concerns an application for judicial review based on Chapter VIII of the Constitution. Mr Boolell cited no authority which restricts the scope of relief that may appropriately be granted in this context. Their Lordships consider that it would be unfortunate if, following a successful application for judicial review, a court were unable to award arrears of salary or give consequential redress that was otherwise appropriate, but had to remit the matter to be decided in separate civil proceedings before another court. A court dealing with a judicial review application can either assess the appropriate award itself or can, if factual or other issues require further evidence or argument, order a trial of such issues separately, giving such directions as may be appropriate for the further conduct of the proceedings.
23. In the present case, the Board considers it most unsatisfactory that no notice was given on Mr Panday’s behalf that he was no longer seeking reinstatement, as soon as he had decided that this was no longer his wish. When the Board enquired what he had been doing since the purported termination of his appointment, it was told that he had not been working. There is no information as to his means of support. The Board considers that it has no option but to remit the matter, for the Supreme Court to determine the period for which Mr Panday should recover in accordance with the principle in McLaughlin, and the amount of credit (if any) that he should give in respect of any substitute income that he may be found to have received. The Supreme Court will be able to give such directions as may be required with regard to the giving of evidence and disclosure. The Board will also remit the application for an award of general constitutional damages, but it will be for the Supreme Court to consider whether any award at all of this nature is in the circumstances appropriate.
24. The Board therefore allows the appeal, sets aside the Supreme Court’s order dated 31 October 2006, gives the appellant leave to apply for judicial review of the respondent’s decision to terminate the appellant’s appointment as a temporary district magistrate with effect from 30 April 2006 and sets aside such decision. The Board remits the appellant’s application for an award of unpaid salary and general constitutional damages to the Supreme Court for determination. The parties will have 14 days in which to make any representations as to costs.
