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EVERYDAY LAW: Power and legality


Cecil McCarthy

EVERYDAY LAW: Power and legality

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There are a number of cases in which the courts have had to adjudicate on actions based on a decision to compulsorily retire a public officer or police officer.
One such case is that of the Attorney General of Dominica versus Miriam Williams et al (2005) where the President of the Commonwealth of Dominica acting on the advice of the Prime Minister under the provisions of the Police Pensions Act Of Dominica compulsorily retired three police officers from the police force on the basis that they had served for more than 20 years.
The respondents had successfully challenged the decisions on the ground that the actions and legal provisions were unconstitutional. The Attorney General appealed to the Court of Appeal of the Eastern Caribbean Supreme Court.
One of the central issues of the appeal was whether the provisions of Section 8 of the Police Pensions Act was unconstitutional as held by the judge at first instance.
The relevant legal provisions that arose for consideration were section 92(2) of the constitution of the Commonwealth of Dominica and section 8 of the Police Pensions Act Section 92(2) reads:
“The power to appoint persons to hold or act in offices in the public force below the rank of Deputy Chief of Police [including the power to confirm appointments], and subject to the provisions of section 93 of this constitution, the power to exercise disciplinary control over persons holding or acting in such offices and the power to remove such persons from office shall vest in the Police Service Commission.”
Section 8 provides:
“The President may require any member of the police service to retire after he has completed twenty years of service or has attained –
(a) in the case of a subordinate officer of or above the rank of sergeant, 55 years;
(b) in the case of any member below rank of sergeant, 50 years.”
Counsel for the Attorney General argued that the decision of the President to require the respondents to compulsorily retire from the police force was not synonymous with the removal of the respondents from the police force and was not a removal or a dismissal within the meaning of the constitution.
Counsel argued that it was necessary for the executive to have control of police officers in so far as requiring them to retire at a certain age and it was also necessary for the executive to have power to retire police officers in the public interest.
In substance counsel for the Attorney General argued that compulsory retirement of a member of the police service under section 8 of the Police Pensions Act was not a removal or dismissal within the Constitution.
He contended that the respondents were entitled to obtain and did obtain all of their pensions rights and therefore the legislative provision and the action of the executive did not amount to dismissal at pleasure, where there is no entitlement to any accrued benefits.
Justice of Appeal Brian Alleyne, S.C. delivering the judgment of the Court of Appeal quoted extensively from the famous Trinidad and Tobago case of Thomas v the Attorney General.
I reproduce a section of the judgment found at paragraphs 18 and 19 thereof which commences with a quotation from the head note of Thomas v the Attorney General.
“The power of the Police Service Commission to remove from office in the police service under section 99(1) of the 1962 constitution embraced every means by which a police officer’s contract of employment (not being a contract for a specific period) could be terminated against his will.”
Lord Diplock, delivering the opinion of the Privy Council, said in relation to the question whether the appellant was a servant of the Crown dismissible at pleasure
“‘[It] is in their Lordships’ view, the most important of the three questions, for it affects the security of tenure and insulation from political patronage and pressure not only from members of the police force itself but also of every member of the public service.
[19] “Far be it from me to suggest that in the particular case of these respondents the actions of the executive were motivated by anything but the most proper motives.  That is not the question before this court.
“What we are called upon to decide is whether the power vested in the executive to require any member of the police service to retire after he or she has completed 20 years of service or has attained a particular age under the provisions of section 8 of the Police Pensions Act is legally permissible in light of section 92(2) of the constitution of the Commonwealth of Dominica.” 
The judge went on to quote extensively from Thomas and emphasised that there was no legal right to summary dismissal without cause.
The appeal was, therefore, dismissed.
• Cecil McCarthy is a Queen’s Counsel.

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