Feb 03, 2017
The President cannot demand the retirement, resignation or stepping down of a statutory office holder. The President cannot also impose any age limits on such an office, unless this is expressly provided for in the law.
A statutory office holder is different from a government official. This distinction was outlined in R v Secretary of State for Justice (UK Supreme Court 2015.07.29). The learned Lords held that:
“An official in a government department is in a different constitutional position from the holder of a statutory office. The official is a servant of the Crown in a department of state established under the prerogative powers of the Crown, for which the political head of the department is constitutionally responsible. The holder of a statutory office, on the other hand, is an independent office-holder exercising powers vested in him personally by virtue of his office. He is himself constitutionally responsible for the manner in which he discharges his office…”
A President would be overstepping his boundaries if he attempts to impose a retirement age on a statutory office holder where the law establishing such an office makes no such provision.
Statutory office holders have what is called security of tenure. They are independent office holders and therefore they cannot be subject to dismissal or removal by the President or government, unless so provided for in law.
For the President to have the power to ask someone to step down from a statutory office would dilute the independence of that office and subject the life of that office to political discretion. In other words, it would violate the security of tenure which such officer holders acquire by virtue of their appointment.
There are three grounds on which a statutory office may become vacant. Firstly, the office can be vacated on the death of the office holder; Secondly, the office holder may resign. Thirdly, the office holder may be deemed mentally unfit to hold that office. Fourthly, the office holder can be dismissed for misconduct.
In relation to the latter two grounds, fairness demands that a tribunal be established to determine whether the statutory office holder is of sound mind or has been guilty of misconduct.
Important principles of constitutionalism are under threat in Guyana. We have had the ingenious interpretation of Article 161 of the Constitution. The separation of powers is being undermined by a decision to advertise the position of Chief Justice and Chancellor when the Constitution provides for appointment by agreement between the Leader of the Opposition and the President. Now, we have this latest episode in which the Chairman of the Police Complaints Authority has been requested to step down.
He should not have been asked to step down. We are told that the reason for the request is because of his age. This has no bearing on the matter.
Age is not a qualification or disqualification for holding such office. Mental incapacity is. The excuse therefore that the former justice is being asked to step down in order to give younger persons a chance does not constitute a basis for interfering with the tenure of a statutory office holder.
If independent office holders can be removed at any whim and fancy, including age, then there can be no security of tenure and that office cannot be deemed independent.
The excuse about age is of course absurd. Judges have a retirement age of 65. The former justices who are being asked to step down are nearly 80, or so we are told.
The position of Chairperson of the Police Complaints Authority has to be filled by a former judge who will be over 65 years of age. So how much “younger” are we speaking about here? The excuse should have been about a “less old” rather than a “younger” person being appointed.
The Chairperson of the Public Utilities Commission (PUC) does not have to be a judge. The Chairperson of the PUC is appointed to a fixed term by the relevant Minister. The Chairperson of the Public Utilities Commission should be allowed to serve out his term. His appointment can only be terminated for “good and sufficient cause” which is spelt out under Section 9 of the Act, none of which applies to the present Chairman. He should not be asked to step down since he does not have security of tenure beyond that period which is three years.
Even clumsier is the practice of the government of taking a decision and then developing a policy to justify that decision. This is back-to-front government. It first should have declared an age policy and then having done this taken action. It however did it the other way around.