Diagnóstico del estado actual del proceso de Formación y Desarrollo

The conceptual map, Figure 15 represents the response to the ancillary question, what really is the role of the Courts in the practice of Public Service Human Resource Management?

This question was posed to the participant to gauge what they taught was the specific role of the Courts in the practice of Public Service HRM.

Figure 15: The Role of the Courts in the practice of Public Service HRM

Source: Researcher’s Interpretation

All participants stated that the Court was playing a significant role in the practice in the Public Service HRM. While their answers were all in the affirmative, they varied according to their professions/disciplines. The Attorneys at Law were very legalistic in their responses, the senior counsel representing the Service Commission stated quite categorically that the role of the Court is supervisory and that its supervisory jurisdiction is based on Administrative/Public Law. For him the Court’s role is to promote good Public Administration, which it does by way of the Judicial Review Act to regulate the conduct of Public Authorities.

Senior Counsel's views are supported by Woolf et al (2007) and Fordham (2004) who both argued that the role of the Court is to ensure that Public Bodies make decisions that are legal and within their jurisdiction. Another Attorney at Law stated that in as much as there is a legislative framework that governs the practice of Public Service Human Resource Management and this framework has its genesis in Public Law; Public Law defines a role for the Court. Further, the legislative framework directs how the Commissions and Human Resource Management Practitioners must perform. The Courts will intervene when there are breaches or perceived breaches that are contrary to the framework. Senior Counsel was in agreement with the opinion expressed by the junior legal officers, he further opined that the Courts provide supervisory jurisdiction and judicial control and interpret Laws by ensuring that Public Service Agencies like Service Commissions do not abuse their power. The Court also ensures that the rules of natural justice are followed and that decisions made by Public Bodies and public officers such as Service Commissions and Human Resource Management Practitioners are not illegal, irrational and unreasonable.

All the legal participants agreed that the Courts ensure that proper decision making processes and procedures are followed. These views are not contrary to those expressed by Lalla (2013), Woolf et al (2007) and Fordham (2004) it can be argued that the Courts play a major role in providing supervision and guidance to Human Resource Agencies. In the case of Patrick Manning v Ferosa Ramjohn and Prime Minister Patrick Manning and the Public Service Commission v Ganga Persad [2011] (UKPC20), the Privy Council in arriving at a decision commented that the Prime Minister in both instances acted otherwise than in good faith, in that the decision making process employed by him was unfair. The Privy Council cautioned that whenever a decision is to be taken against someone on the basis of an allegation, fairness demands that they be given an opportunity to meet it that is they have a right to be heard (the whole question of natural justice). For the Attorneys at Law this is a classic example where the court gave guidance of what should be done where allegations have been made against someone and the person is negatively impacted by these allegations.

The Human Resource Management Practitioners on the other hand spoke of the Courts provide learnings and lessons by their judgements. In most cases, they felt that the major function of the Court was interpreting Laws and Regulations to bring clarity where ambiguity exists. The Courts in their opinion play a critical role in explaining to the commissions and Human Resource Management Practitioners their obligations and responsibility in terms of the process and procedures as outlined in the various pieces of legislations and regulations

that inform Human Resource Management practices. In variable the courts in their view were playing a key role in outlining where there might be variances in Human Resource Management practices and the Law. For these Human Resource Management Practitioners in particular lessons and learnings from the Judicial Review judgement have forced them to examine carefully and to proceed with caution when making Human Resource decisions to ensure that the processes are in keeping with what is contemplated by the various Laws and Regulations. These findings/sentiments expressed are consistent with those stated by the legal officers, in that the Court's role is that of supervision and control.

It has been established by the Privy Council that the jurisdiction of the court is to control administration by way of Judicial Review. With respect to Service Commissions with the promulgation of the Judicial Review Act in 2000 and the subsequent removal of the Ouster Clause, the supervisory jurisdiction of the Court has expanded significantly. On the basis of these findings one can argue successfully that the Courts are playing a key role in Public Service Human Resource Management. Former Chief Justice of Trinidad and Tobago Michael De la Bastide Sc. in a paper he presented in 2006, titled 'Judicial Supervision of Executive Action in the Commonwealth Caribbean', commented on what he termed Judicial Activism in the region. He lamented that many recent decisions of the Courts in the Commonwealth Caribbean seem to reflect a higher level of judicial activism in the field of Public Law than was previously evident. De la Bastide however opined that judges are not well equipped to make policy decisions which are better left with those whose business it is to make them. He continued that judges too must obey the Law and must respect the rights of public officials and authorities to exercise their decision making powers which the Laws have invested in them. He stated that excessive interferences by the Judges in the business administration will create loss of efficiency and effectiveness in administration, not to mention frustration and tension.

Former Justice De la Bastide’s views are instructed in determining the specific role that the Court is playing in the practice of the Public Service HRM. In light of the concerns enunciated by the former Chief Justice it is a well-established fact that the Court in the exercise of its supervisory jurisdiction may squash a decision of an Administrative Body on an application for Judicial Review if such decision is illegal, that is if the decision is a mistake in Law, or if the Administrative Body acted in excess of its jurisdiction Woolf et al (2007) and Lalla (2013) also echoed De la Bastide's views that an institutional limitation of the Court is lack of relative expertise as the reviewer of facts or the merits of the decision, is

not routinely permitted in Judicial Review, these are some matter which are best resolved by those with specialist knowledge connected with the issue. The Court generally takes the view that the Judicial Review is not an appeal from a decision but a review of the manner in which the decision was made.

Several authors on Judicial Review have argued that it would be an error to think that the Court sits in judgement not only on the correctiveness of the decision making process but also on the correctness of the decision itself. It can be reasoned therefore that the role of the Court is not to substitute their decision or opinion for those of Public Authorities unless there is a fundamental error in Law. The Court will therefore have an inherent authority to squash Human Resource decisions if they fall outside the realm of the Law. It can be reasonably argued that the courts have a role in the practice of Public Service Human Resource Management as Service Commissions Department and other Human Resource Agencies must practice their Human Resource function/duties as Public Service organizations within the Law. They are therefore subject to the rule of Law and under the jurisdiction of the Court. It is clear, that the Courts are signalling that there needs to be a partnership between the Courts and Public Service organizations like Public Service Commissions. Arguably, Law and Lawyers can no longer be seen as separate to the process of Administration, they are an integral part of it. Public Administrators, especially those carrying out Human Resource Management functions must be aware of the legal implications of their decisions and have Lawyers involved in the early stages of the decision making process to provide advice and to aid in interpreting the Laws that impact their practice. In the absence in such approaches it might well result in the preponderance of Judicial Review matters and heavy financial burden to the State.

One Human Resource Management practitioner reasoned that with the role that the Court plays in public Human Resource Management, it might result in changing the behaviour of those public officers who are engaged in Human Resource Management practices. The extent of the change, while it may be open to debate, the findings from the next ancillary question can provide useful information on the extent that Judicial Review is impacting Human Resource Management processes in the Service Commissions and the Service Commissions Department in Trinidad and Tobago.

4.7 Judicial Review Impact on Human Resource Management Processes/ Practices in