The Editor, Sir:

Misbehaviour is a term more often applied to children and pets than adults. Therefore, when the Prime Minister dismisses the Public Service Commission (PSC) for misbehaviour, we need to ask the question, "What is misbehaviour?"

In the case of Julia Lawrence v AG of Grenada, the Judicial Committee of the Privy Council (JCPC) ruled that:

A. "Constitutional misbehaviour" has no single accepted definition;

B. Courts require the context (in law) in which the term is used before they can determine whether or not the "misbehaviour" occurred.

Misbehaviour, for constitutional purposes, is not a simple question of fact. Further, individuals cannot define this term according to their personal view of misbehaviour.

In determining what constitutes misbehaviour, the JCPC identified the following essential considerations:

What is the nature and function of office held by the person accused of misbehaviour? What are their duties?

Does the alleged misbehaviour have a direct impact on whether or not the office holder can continue in office?

Would the alleged misbehaviour cause citizens in general to see the office holder's action as corrupt or improper? Could the office holder's actions be seen as inimical to the interests the persons or the entities that are supposed to benefit from the office holder's functions?

Ultimately, does the alleged misbehaviour bring the person's office into disrepute?

An Australian case shows how complex these considerations are. A government minister dismissed the chairperson of a statutory commission (dealing with aboriginal affairs) on the grounds of "misbehaviour". A court had convicted this chairperson of obstructing the police in the course of an incident in a public house.

In the minister's opinion, the misbehaviour warranting the chairperson's suspension was his obstruction of the police. However, the Australian Federal Court ultimately held that the minister had: A. Failed to apply the legal criteria for establishing misbehaviour; and

B. Wrongly applied her own subjective notion of misbehaviour in suspending the chairperson;

C. Failed to take into account the impact of the conviction on the capacity of the applicant to continue to hold the office of commissioner, and indeed the impact on the aboriginal peoples that he represented.

Quashed by the court

The minister's decision was therefore quashed by the court as unlawful.

In simple terms, a person cannot be dismissed for constitutional misbehaviour without it being established that: a) his or her conduct would have a damaging effect on their capacity to do the job; and b) they would be seen by the public as bringing the position itself into disrepute. For example, if a PSC member were convicted of a serious offence like fraud or tax evasion, such a conviction could directly affect his/her capacity to do the job, as well as bring the office of PSC into disrepute. On the other hand, a conviction in the Traffic Court for exceeding the speed limit is not likely to have the same effect.

The Prime Minister dismissed the PSC in a context in which the Government opposed the PSC's recommendation of Stephen Vasciannie as Solicitor General. The PSC could conceivably have withdrawn the recommendation of Stephen Vasciannie, and defied the Constitution by deferring to the Prime Minister's choice of Solicitor General. Had the PSC taken this course, it could justifiably have been charged with constitutional misbehaviour, warranting dismissal. Why? Because to have given in to the dictates of the Prime Minister, the members of the PSC would have brought the commission into disrepute by making it a mere "rubber stamp" for the political directorate, thus damaging its functioning as an independent body.

I am, etc.,

O. HILAIRE SOBERS

ohilaire@yahoo.com