Two legal, political truths diminished in Ram’s letter
Dear Editor,
I refer to a letter by Christopher Ram (‘Treatment of Sattaur by persons from the GRA is not acceptable’ SN, January 5). Mr Ram laments, protests and reprimands. I, too, am concerned. But I am more concerned about the real danger to the public interest from the imputations, insinuations and aspersions (if they remain unrebutted) in, inter alia, such language in Mr Ram’s letter as “seven months into a new government ... apparent inconsistency ... basic rights which no government and no employer should violate”. Mr Ram protests the “humiliating treatment” Mr Sattaur “is reported to have received from persons from the Revenue Authority”.
He puts on his lawyer’s hat and contends that Mr Sattaur’s leave amounts to “constructive dismissal.” He argues that a tax collection agency should be free from “political direction and control” and should function independently and professionally, otherwise there could be, he warns, “irreparable consequences”. He closes his case with an implicit reprimand of Finance Minister Winston Jordan that he “... must ensure that that the reputation and integrity of the GRA are maintained.”
In all of this, I would suggest that the attorney has diminished two profound and fundamental political and legal truths: (1) in political democracies such as ours, the removal (temporary or absolute) of political appointees on a change of government is a legitimate constitutional expectation; (2) Article 8 of our constitution means that statutory ministerial responsibility does not preclude the subject minister from taking the matter to cabinet for its deliberation and decision under the doctrine of cabinet-collective responsibility
Readers with an interest in this matter, are entitled to be presented the case on the other side if they are to take an informed dispassionate position on this matter. So, what is the argument on the other side? I hold no brief for the GRA or the Minister; I argue out of public interest.
Firstly, the Commissioner General is appointed and removed from office by the governing board ( GB) subject to the approval of the Minister. He holds no autonomous office and is not a public servant, so enjoys no security of tenure under the Revenue Authority Act (RAA), and is in that sense a political appointee, vulnerable to the vicissitudes of cabinet politics. If he can be removed permanently, what is there to complain about when the GB opts to take the patently less adverse option of sending him on leave? We who are not privy to the deliberations of the GB must do the decent thing and attribute to it a rebuttable presumption of regularity and propriety, rather than open the matter to unsupported insinuations and aspersions, as well as the negative nuances one associates with the notion of “constructive dismissal”.
Secondly, the veiled reprimand of the Minister of Finance is wholly unjustified. The maintenance of the “integrity and reputation” of the GRA must be related to its purpose as a taxing agency. Taxation is purely a matter of prescribed laws (practice may complement them) to be strictly applied. So, does sending the incumbent Commissioner General on leave and/or his deprivation of the GRA’s properties inherently compromise, or is detrimental
to the efficient application of those laws? Not at all. Has the Minister been shown to have given “policy directives” (section 12 of RAA) inimical to their application? Not at all. How has he discharged his ministerial responsibility improperly? Not an iota of evidence, even without concluding his involvement in this leave matter.
Thirdly, relying on the CCJ’s decision in the Brent Griffith case in 2006, the RAA does not insulate appointees like the CG from “political direction and control”. When the RAA vests responsibility in the Minister, it creates a constitutional linkage
ipso facto with the cabinet, and the constitution becomes relevant. It is he, the minister (and by operation of constitutional law, the cabinet), who decides questions on matters of necessity or expediency. So, here too, the decent thing must be to attribute to the Minister a rebuttable presumption of regularity and propriety to the extent that he was involved in this matter. Indeed, Parliament could have opted in sections 12, 21 and 22 to exempt the GB and by extension the CG from the exercise of any subjective discretion of the minister (and his politics). Instead, the very opposite obtains, with all of cabinet’s political predilections.
Fourthly, our (constitutional) jurisprudence (and I would stress this point) permits and indeed sensibly expects the removal of political appointees (temporarily by leave, or permanently) as the removing authority sees fit upon a change of government. Kurshid Sattaur’s tempo- rary removal carries no political or legal opprobrium. And it would be the strangest thing if in the terms and conditions of his appointment, the GB/ minister/ cabinet unwittingly purported to fetter its exercise of this constitutional discretion.
Fifthly, what “basic rights” is Mr Ram advocating? The GRA as employer has an implied right to go to wherever its properties are wrongly detained. The firearm and computers, etc, taken from Mr Sattaur were all the GRA’s property (and not his personal property). He was a bailee by licence of them for the purposes of and incidental to the performance of his duties as CG (there is old English case law on this point). As such a bailee, had Mr Sattaur acted with administrative probity and propriety he ought to have relinquished possession of them upon being sent on leave as the licence became suspended by such leave, and this “humiliating” treatment could never have happened. The GRA as employer-bailor has “basic rights” too ‒ rights at law; inter alia, the right to demand the return of its property by not acquiescing in their wrongful detention. An employee-bailee violates these rights at his own peril.
The GRA cannot be faulted. Critics may yet concede that the GRA acted with both legal aptness, and administrative accountability and rectitude; that Mr Sattaur is the victim or casualty of his own indiscretion.
Yours faithfully,
Maxwell E Edwards