The Dominion. TUESDAY, AUGUST 24, 1909. CIVIL SERVANTS AND THE LAW.

Dominion, Volume 2, Issue 594, 24 August 1909, Page 4

The Dominion. TUESDAY, AUGUST 24, 1909. CIVIL SERVANTS AND THE LAW.

On more than one occasion recently wo have called attention in these columns .to that pernicious tendency of some modern Legislatures, -which the Lord Chief Justice of England recently condemned in guarded but emphatic terms, to restrict the right of the individual to resort to the ordinary tribunals of the land -when his liberty or his propertyincluding, of-course, his repute amongst his fellows—is attacked or threatened. \Ye did not expect, when wo wrote on the subject, that a very remarkable illustration of the way in which the Executive has usurped the' authority rightly belonging to the. Courts of Justice was , about to appear at our doors, Such an illustration has been supplied, however, I by the decision given by Mil, Justice I Cooper on Saturday in the case in whiqh I a Civil Servant, who had been suspended i for alleged serious breaches of discipline, appealed to the Supreme Court for a writ of certiorari directing the cancellation of the report submitted to the Gov-omor-in-Couucil by the Board which invostigatod tho charges. The plaintiff,

who denied the charges made against him; alleged that the Board had summoned him to attend before it upon insufficient notice, that owing to illness ho was unable to attend, and that, although his solicitor 'presented these pleas on his behalf, the Board nevertheless proceeded with its inquiry in his absence. The judgmont in which the Supreme Court dismissed the motion for the issue of a writ of certiorari disclosed a very remarkable state of the law, which the genoral body of Civil Servants can only view with the deepest concern, and which the public can have no hesitation in perceiving to be contrary to the fundamental principle of British justice. "I have come to the conclusion," his Honour said, "that the Court has no jurisdiction to order the writ to issue, There is no thing in tho judgments of tho High Court which indicates that the proceedings of tho Board oan be roviewod upon a motion for a writ of certiorari. . . .

Tho plaintiff must appeal to tho Executive if he desires to reopen tho matter."

As to tho-truth or falsity of the charges against tho person concerned, wo. have no knowledge, and therefore cannot speak; nor do wo know whether tho. appellant was denied a fair hearing quito so completely as he alleges,. Tho point which is of tho greatest importance is that tho Supreme Court has ruled that thoro can bo no appeal, to tho ordinary tribunals against tho finding of a ;Board of Inquiry sot.up by the Govern-, ment under Section 18 of the Civil Service' ..Act. Since . there is ' unfettered power in the Government's hands to seloct whomsoever it desires to act as a Board of Inquiry, it is obvious that a corrupt Government can; secure the ruin lor tho dismissal of any Civil Servant whom it may desire to, ruin or dismiss. The inability of tho ordinary Courts to reviow the decisions: of these, ',". Boards, that is to say, is a standing monace'tb tho.' Civil. Servant's-'security, and ;. wollboing, and a standing, violation of the /spirit of the vital rule that Hfo, liberty, and.property are not to bo disposed 1 of by, Boards or Commissiohers or piviiServants, : but -by judges and? juries, ; accord-: ing' to'duo .form'of ■ law. aro;;fu|}y, aware that Soction 18 of the Civil Servioo Act differs f very, groatly in character from".-the clause of the Land and Income Tax,. Assessment: Apt wKioh allows ;... up appeal!from v the decision of the Commissioner .in fixing-.exemptions., from'' the operation: of the graduated, tax. ; -But ', I provision of [a, Board of Inquiry presupposes the Civil {Servant's? right to havo something- liko,a!judicial •examination of charges brought against him' as ; a Civil. Servant.;- ''And 'just: as. Blaoksione held that the' great primary' rights could not be secured by the dead letter of statute.law, unless?certain.other auxiliary 'rights were 'provided: for : in '■/■ the Constitution, ?so tho ?character of goyernment in-general is: such that-:thoExocu-; tive's .machinery ■of -trial cannot jsecuro unchallengeable justice unless the Civil Servants are allowed accesß to,the,ordinaryCourts of tho land. '■ ■ ■• "- '?;?.' > : ?" .'■ '.We. .know, the.'sort of. excuso that .will be advanced: for,.the Executive's" retention' :of ?uncon trolled power '/.over' the destihies\of the; Civil. Servanttenlt will' be, urged, no- doubt, that to. open the door' to appeals? to'.the; Supreme ippurt will result in.ah .'appeal? in every? case', and a vexatious 1 ? subordination of Departmental: authority 'to Court. -author; iby.? Toj'our;mind,'that, is riot only an insufficient excuse; it: is. even an'• assertion of the proprioty of what is improper; 'Departmental -rulo; will bo all the better for having r to submit to examina-

tion; -in"such cases;as those 'under discussion,; by the Court '.'.which;-;alone, in Jioiib Ailvebstone'b words, can''"protect

the' interests of the subject against the ; Executive." But it may be further urged that, tho Boiirds. will- always:jbo. {air, : and will be; composed always of. honourable'arid capable raep.; What guarantee .is there .that. this : always, is, or al: ; ways [ will be,' tho easel ' None-; at .all; gather we cannot; escape (the ; conviction that there is a large,possibility, in the opposite direction. Even iri'the cane iraV mediately .under notice, the Board is 'air leged to have acted -in a manner which was,; to say tho least of .it, very odd indeed, arid anything but- reassuring to ; the general body;of the Civil Service.. If it be still, further urged that; the Supreme! Court is not so,; well equipped tp deoide such cases as is a Board of experienced Civil Servants, ; wp can only reply that that is a mere assertion; which cannot be supported by: any good •-. argument, and which is'manifestly opposed to-the whole theory;V'qf ; law,', which assumes., in. the

Supreme Court-a capacity to decide complicated : and technical cases of; every possible character. The powers vested in the Boards and the Executive are great and dangerous—far too great and dangerous, to be, left free from the control of tho' Courts which are ' tho < traditional guardians in British: countries, of the rights ' and liberties of the subject. '. r