Introduction
Last week, we looked at the Public Service Commission (PSC) that is constitutionally empowered to appoint, discipline and remove public officers. It is the institution that the public looks forward to in ensuring that there is a fair, equitable and transparent system for government employment. We, however, saw how Ministries, Departments and Regions are recruiting large numbers of persons as contracted employees at significantly higher salaries and other conditions of service without the involvement of the PSC. In addition, there is no evidence to indicate how the concerned agencies selected and remunerate these persons, and therefore the issue is also one of transparency.
Despite what is clearly a dilution of the Commission’s authority and seemingly a degutting of the traditional public service, we are yet to learn of any word of protest from that body. The occasional statements from the concerned trade unions are far from satisfactory in that they are somewhat muted and lack the vigour of any serious attempt to protect and defend the rights of people they represent.
Today, we examine two other important institutions that have the power to investigate complaints: (a) against decisions of the three service commissions; and (b) of injustice due to maladministration by any government agency or functionary. We refer to the Public Service Appellate Tribunal and the Office of the Ombudsman.
Public Service Appellate Tribunal
Recourse to appealing decisions made by institutions in relation to the appointment, discipline and removal of employees is a long-standing practice among governments and international institutions. For example, the European Union Civil Service Tribunal adjudicates in disputes between the European Union and its civil service while in India there is an appellate tribunal for each sector of State operations. The United Nations justice system has a similar mechanism. There is the UN Dispute Tribunal that hears and decides on cases filed by or on behalf of current and former staff members appealing administrative decisions alleged to be in non-compliance with their contracts of employment. Staff members also have a right of appeal to the UN Appeals Tribunal.
Article 215A of the Guyana Constitution establishes the Public Service Appellate Tribunal to hear appeals “…in respect of any matter so specified, being a matter in respect of which the Public Service Commission, the Teaching Service Commission, and the Police Service Commission or the Commissioner of Police is empowered to make a decision…” In other words, a public servant, a teacher or a police officer has a right of appeal to the Tribunal against any decision by the relevant Service Commission if he/she feels that there has been unfair treatment.
The Tribunal consists of a Chairman and not less than two other members appointed by the President. The Chairman is appointed from persons who are or have been Judges of the Court of Appeal. In addition, one member must have experience in administration, personnel management or public affairs while one other person represents each of such organizations (being organizations to represent public officers, or classes or sections of public officers) and nominated by the organization that the member is appointed to represent.
Current situation of the Public Service Appellate Tribunal
An examination of the estimates of expenditure for 2012 indicates that there are over 22,000 authorised positions that fall under the jurisdiction of the three Service Commissions in terms of appointment, discipline and removal. With such a large number of public officials to deal with, it is inconceivable that some officers will not have grievances regarding the decisions of these bodies. It is mainly for this reason that the Constitution provides for the establishment of the Tribunal. Indeed, it would be fair to say that no organization has reached that level of perfection that some employees will not have concerns or grievances.
The Tribunal, however, has not been in place since August 1995. As a result, aggrieved public officers seeking redress have no alternative than to petition the Courts in the form of a civil action. This is not only expensive in terms of legal costs but the matter could also take years to be brought to a satisfactory closure, given the backlog of cases to be handled by the Courts. In addition, there is the fear factor in that a public officer challenging the decision of a Service Commission may very well find himself/herself out of employment, thereby losing the accumulated benefits of serving the State. Invariably, most if not all of the aggrieved persons will choose to remain silent, move on to other employment, or migrate overseas.
The Ombudsman:
The Ombudsman, invariably described as the “poor man’s lawyer”, is a government official who investigates citizens’ complaints against the government or its functionaries. According to Prof. Fiadjoe, the Ombudsman adjudicates over issues of maladministration and injustice in an informal setting without the normal trappings of formal process or associated costs. He/she brings to bear in a conciliatory process a high degree of informality and simplicity involving parties with unequal resources. The work of the Ombudsman encourages good government and helps to bring transparency to the decision-making process.
As an example, the Maastricht Treaty establishes the European Ombudsman. Any European Union (EU) citizen or entity may appeal to the Ombudsman to investigate an EU institution on the grounds of maladministration, administrative irregularities, unfairness, discrimination, abuse of power, failure to reply, refusal of information, or unnecessary delay. The Ombudsman has no binding authority to compel corrective action but, armed with the power of persuasion and publicity, compliance is high. Each year, the EU Ombudsman receives 3,000-4000 complaints.
Article 191 of the Guyana Constitution provides for the President to appoint an Ombudsman acting after consultation with the Opposition Leader. The tenure of appointment is for a non-renewable period of four years. The main responsibility of the Ombudsman is to investigate any action taken by a government department or other authority, or by the President, Ministers, officers or members of such a department or authority in relation to the exercise of the administrative functions of that department or authority.
Investigation may take place in any of the following circumstances:
* Allegation that the complainant has sustained injustice as a result of a fault in administration;
* At the request of the President, a Minister or a member of the National Assembly on the grounds that a person or body of persons has or may have sustained such injustice; or
* Any other circumstance that the Ombudsman considers he/she ought to investigate where injustice has or may have occurred.
The Ombudsman may decline to initiate or continue an investigation if in his/her own deliberate judgment he considers that: (a) the complainant was aware of the matter for more than 12 months prior to reporting it; (b) the matter is trivial, frivolous, vexatious or had not been made in good faith; or (c) the complainant does not have sufficient interest in the matter reported. There are also a number of matters that the Ombudsman will not investigate, especially those relating to national security and criminal investigation; and commencement of court proceedings.
All complaints and requests for investigation must be made in writing, and the investigation is conducted in private. If there is a breach of duty, misconduct or criminal offence, the matter is referred to the competent authority for disciplinary action to be taken. No decision of the Ombudsman can be challenged, reviewed, quashed or called into question in any court. In the public interest, the Ombudsman may from time to time publish reports.
Current situation with regard to the Ombudsman
It is indeed very disappointing that no Ombudsman has been in place since the last person, Mr. S.Y. Mohamed, demitted office around 2005. Citizens have therefore been without the services of the “poor man’s lawyer” for seven years. Whatever the reason(s) for this unfortunate state of affairs, Guyana cannot be viewed in good light when compared with its Caribbean counterparts – Jamaica, Barbados, Trinidad and Tobago, Dominica, St. Lucia, and Antigua – that have a functioning system to investigate citizens’ complaints via the Ombudsman.
Conclusion
It is encouraging that the President and the Leader of the Opposition are in dialogue to have, among others, the Public Service Appellate Tribunal reconstituted and become operational. This will be a welcome relief for public officers notwithstanding the untold damage to the morale of affected public servants over the last 16 years for the disregard of the important constitutional safeguard. The trade union movement needs to be more vigilant in ensuring that this happens as quickly as possible failing which it could seek a judicial review to protect the rights of the workers it represents.
The Office of the Ombudsman is indispensible to the effective functioning of the State. It provides for a check on possible abuse of authority and promotes transparency, good governance and accountability. With its origins in the Scandinavian countries, particularly Sweden, it is no wonder that over the years these countries have been rated among the best in the world in terms of living standards and the quality of governance and accountability. These countries also ranked among the best in relation to perceptions of corruption. The time has come for Guyana to embrace the good practices of other countries if it is to realize its true potential.
