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EVERYDAY LAW: Being retired in the public interest

Cecil McCarthy

EVERYDAY LAW: Being retired in the public interest

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Judging from the feedback that I have been receiving there has been a fair amount of interest in the public law issues that I have been addressing. One query that has been raised is whether a public officer cannot just be paid out and retired in the public interest.
There are several cases in the Caribbean in which this issue has been examined. One such decision is the Belizean case of Darrel Smith et al vs The Attorney-General (2003) in which the Supreme Court of Belize had to consider the constitutionality of the compulsory retirement of four public officers.
In 2003 the Belizean government sent home four senior employees of the Customs Department on the ground that they were being retired in the public interest.
The Government in sending home the four employees invoked section 20 of the Services Commissions Relations which states as follows:
“Public officers may be permitted or called upon attaining the age of (55) years to retire in the public interest.”
One of the main issues that the Court had to consider was whether the above provision requires that reasonable cause be shown for the retirement in question.
The then Chief Justice of Belize, Dr Abdulai Conteh, held that the dismissal of the public officers was unconstitutional and null and void. He also ordered that they be reinstated forthwith and that all salaries and benefits be paid retroactively to the day that they were terminated.
The main reason for the Chief Justice’s decision was that in order to compulsorily retire a public officer you had to show cause and this was not done in the case. He also held that natural justice applied and that the public officers had to be notified of the reason for their retirement and given an opportunity to be heard in their defence.
This case requires careful study and space constraints do not permit me to deal with it comprehensively in one article.
Today I refer to a section of the judgment in the case in which the court sets the background of the decision against the celebrated Trinidadian case of Thomas v Attorney-General [1982] – a decision of the Privy Council which was discussed in last week’s article:
“It is now generally accepted that the Constitutions of Commonwealth Caribbean States limit the arbitrary power that had previously been exercised by the Crown in the colonial era in relation to the Public Service, in particular, by abolishing the concept of dismissal at pleasure and by giving public officers a security of tenure that is superintended by autonomous Public Services Commissions – see Thomas v Attorney General (1982) A.C. 113 where Lord Diplock at pp. 123 – 124 discussed how the concept of dismissal at pleasure of public officers was given the quietus; also, the decision of the OECS Court of Appeal in Duncan v Attorney General (1998) 3 LRC 1128.”
I dare say that the demise of the concept of dismissal at pleasure or will of public officers is recognized and affirmed in both the Constitution of Belize and the regulations governing the public service made pursuant to the Constitution.
Therefore, notwithstanding the terse and laconic provisions of Regulation 20 stating that public officers may be called upon to retire before attaining the age of 55 years “in the public interest”, I am of the considered view that if this were so, without more, it would be no more than (to paraphrase, with respect, Lord Diplock in Thomas supra at p. 123) to use a lawyer’s metaphor to cloak what in this instance would be dismissal or removal of public officers at will or pleasure.
This cannot be right, correct or fair. It would run against the grain of the Services Commissions Regulations themselves. As Lord Diplock again stated in Thomas supra at page 126:
“To ‘remove’ from office . . . embraces every means by which [an] officer’s contract of employment (not being a contract for a specific period), is terminated against his own free will, by whatever euphemism the termination may be described, as, for example, being required to accept early retirement (emphasis added apropos the position of the applicants in these proceedings).”
• Cecil McCarthy is a Queen’s Counsel.