There are rules which insulate the public service from political interference, just as there are rules which prohibit politicians from interfering in the day-to-day affairs of public corporations. These rules are intended to protect both the public service and public corporations from politicization and to ensure security of tenure of their workers.
Unless the public service and public corporations are so protected, then persons can be dismissed and employed at the caprice of those who willed political influence. These rules prohibit Ministers of the Government from dismissing or disciplining any public employee; nor are Ministers allowed to instruct a Board to reemploy a dismissed employee.
The coalition government seems intent on politicizing the public service and public administration. The pretense about professionalism should therefore cease.
This column does not accept the idea that it is to be expected that government employ their supporters. Employment is to be based on merit – the right person for the right job.
The politicization of the public service and handing jobs to party supporters have wrecked public administration in Guyana. Square pegs have been placed in round holes. And grave injustices, as has been the case at the Guyana Chronicle and at the Department of the Public Service, have been done because of political meddling in administration.
The job of Ministers is to make policies, not to interfere in the administration of the Ministries. That is task for permanent secretaries. The role of Ministers is not to instruct Boards of public corporations but to advise on Government policy.
The coalition government has made it obvious that it is prepared to cross the divide between those who make policies and those implement policy. This has happened both within the public service and within Government corporations.
A public corporation is not part of the public service. Public corporations are not synonymous with government. Nor are their officers considered as public servants. This was the view expressed by the Caribbean Court of Justice (CCJ) in a case which was decided in 2006.
In that case, the learned Justices of the CCJ quoted Lord Denning who in Tamlin V. Hannaford (1950) had this to say: “In the eye of the law the corporation is its own master and is answerable as fully as any other person or corporation. It is not the Crown and has none of the immunities and privileges of the Crown. Its servants are not civil servants and its property is not Crown property…(it) is not a government department nor do its powers fall within the province of the government.”
The corporation has a legal personality that is separate and distinct from its owners. NICIL as a corporation is different from a public service body since it has the capacity for perpetual existence, its ownership is transferable – and transferable even to the private sector as in the case of privatization – and it enjoys limited liability. When it acts, it acts in its own name.
No Minister, regardless of the status of that Minister, therefore has any authority to instruct the Board of Directors. Any Ministers so doing would be out of order and the Board is under no compulsion to comply with that order.
It is only the Board of Directors of a public corporation which can reinstate an employee whose employment is subject to Board approval. If there is no quorum, there can be no meeting of the Board and where there is no Board, the Minister with responsibility for the corporation has no authority to order the reins.
And no Minister has any authority to dismiss any public servant. Ministers do not have powers of dismissal. They should not be meddling in administrative matters much less signing dismissal letters. That is the responsibility of the permanent secretary.
There are ways to remedy wrongdoing. One is to ask for a review of a decision not to instruct a reversal. The other is to ask for an investigation.
In any other part of the world, a letter from a Minister instructing the reappointment of a terminated employee, would have led to calls for the resignation of that Minister.
In any other part of the world, the same would have happened if a contract of employment was terminated by way of correspondence under the hand of a Minister.
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