Facts
The plaintiff, a seasoned civil servant, was charged under the Economic and Organised Crime Control Act 1984 and acquitted. Then disciplinary proceedings were instituted against him under the Civil Service Regulations; the proceedings ended in his favour. He was then removed from office by, as stated in the letter communicating the decision to remove him, the President directing that he be removed in the public interest. He filed a suit for a declaration that his removal from office was wrongful. The defendant raised a preliminary point to the effect that the court had no jurisdiction to try the case because the President had a prerogative power to remove a civil servant in the public interest; that civil servants held office at the pleasure of the President; and that the President's decision to remove a civil servant in the public interest could not be enquired into by any court.
Held:
(i) The prerogative power of the Crown to dismiss a civil servant at will ended, and did not devolve to the President, when Tanganyika became a Republic in 1962; instead the President could only remove a civil servant in the public interest under s 20(3) of the Civil Service Act 1962, Cap 509, now replaced by the Civil Service Act 1989 (Act No 16 of 1989).
(ii) Termination of a civil servant at the will of the President is not the same thing as removal in the public interest; in the former the president need not show the cause for the discharge while in the latter he must show the public interest being served.
(iii) When removing a civil servant in the public interest, the President is bound to give reasons indicating the public interest to be served, under the Constitution the civil servant so I removed has the right to appeal against, or to apply for judicial review of, that removal and if no reasons are given therefore, that constitutional right will be rendered ineffective and illusory.
(iv) Disclosure of reasons for removal of a civil servant in the public interest is also necessary so as to reduce the possibility of casualness, arbitrariness and abuse of power in the decision making process and to instill public confidence in it and maintain its integrity, and to satisfy a basic need for fair play.
(v) The notion of a subjective or unfettered discretion is contrary to the Rule of Law, although the Civil Service Act 1989 says that the President may remove a civil servant from office if he considers it to be in the public interest to do so, the discretion of the President must nevertheless be exercised objectively and the High Court may enquire into that exercise to see if it was properly exercised.
(vi) Statutory clauses ousting the jurisdiction of the courts are ineffective to exclude the power of the High Court to exercise its supervisory role of judicial review conferred on it by article 108(2) of the Constitution;.
(vii) The provisions of ss 6 and 7 of the Pensions Ordinance which say an officer removed from service in the public interest has no right to compensation for past services and no right to other allowances he is otherwise entitled to, and which bar such officer from presenting his claim in court are unconstitutional and void; the plaintiff is at liberty to present his claim in court.
Case Information
Preliminary object overruled.
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