Arguments justifying action against Kurshid Sattaur

Jan 14, 2016 Letters

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Dear Editor,
I refer to a letter by Christopher Ram (SN 2016-01-05 “Treatment of Sattaur by persons from the GRA is not acceptable;” KN, 2016-01-05 “Christopher Ram is concerned about treatment of Kurdish Sattaur”). 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 laments about “political direction and control” to the detriment of independence/professionalism in the operations of the GRA, with what he warns, as dire “irreparable consequences”. He closes his case with a veiled and 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 trivialized and diminished two profound and fundamental political and legal truths — (1) in political democracies such as ours, the removal (temporary or absolute) of political appointees upon a change of Government is a legitimate constitutional expectation; (2) article 8 of our Constitution (supremacy) means that statutory ministerial responsibility, cannot, and does not preclude the subject Minister from taking the matter to Cabinet for its deliberation and decision under the doctrine of Cabinet-collective responsibility [article 106(2)] which is no less fundamental in our constitutional architecture than the separation of powers doctrine. The Minister is a statutory conduit. Put differently, “Minister in the Revenue Authority Act means Cabinet as the context requires (see Blackman (1994) 45 W.I.R 94,PC).
Readers having 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.
Here are my five (5) arguments:
Firstly, the Commissioner General appointed and “removal” from office by the Governing Board (the “GB”)”subject to the approval of the Minister” holds no autonomous office, 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, uninsulated and vulnerable to the vicissitudes of Cabinet politics. If he was removable permanently, without any legal opprobrium whatsoever, (the most adverse or severe option) what is there to complain or lament 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 the GB a rebuttable presumption of regularity and propriety, rather than open the matter to unsupported insinuations and aspersions and 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 “reputation and integrity of the GRA” must be related to its purpose as a taxing agency. Taxation is purely a matter of prescribed laws (practice may compliment them) to be strictly applied. So, does sending the incumbent Commissioner General on leave and/or his deprivation of the GRA’ s properties inherently compromises, 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 assuming, 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 of the type of the CG from “political direction and control”. When the RAA vests
ministerial responsibility of that type in the “Minister”, it creates a constitutional linkage with the Cabinet [see the case of Blackman, and our IGCA, Cap 2:01, and article 232 (9)], and ipso facto the Constitution becomes relevant. It is the Minister (and by operation of constitutional law, the Cabinet) who decides questions or 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 any 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 (the “subject to” effect), 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. Lord Diplock eruditely and poignantly explained this constitutional truth in the well known Thomas case (1980) P.0 when positing the justification for insulating public servants (the CG is not a public servant) from dismissal at pleasure by attributing to them security of tenure and removal for cause only. Kurdish Sattaur’ s employment is no exception. His temporary 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 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 are old English law cases 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 or handing over of its property by not acquiescing in their wrongful detention. An employee — bailee “violate” these rights at his own peril, if by assuming to himself rights of ownership and detaining the properties he deprives the GRA as owner of the use of them. A fortiori, where there is an appointed CG (ag) and Mr. Sattaur is for the time being (the de jure); not the de facto CG who ipso facto assumes rights of user of those properties.
The GRA cannot be faulted. Idiosyncracies ignited by professional comity apart, upon detached reflection 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 mis-arrogation and indiscretion; and that not even equity (that court of mercy and conscience) would be on his side for equity demands that “he who comes to equity must come with clean hands”..
Maxwell Edwards

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