十
(iii)
4
A court on convicting an officer orders him to forfeit his "right and claim" to pension (see S.5(1)(f)) but the Governor is of the opinion that the pension should not be withheld or that a reduced pension should be granted. The legal effect of the court's order would, I think, be doubtful. It might be held to be an absolute bar to the granting of a pension; on the other hand it could be argued that since a Crown employee has in law no "right" to a pension the order of the court has no legal effect and that it is, therefore, legally possible to grant the pension despite the order of the court. But even if the latter view is correct it seems to me that it would be logically difficult for the Government, having once secured the passing of an Ordinance which purports to confer on the courts the power to deprive an officer of his pension rights, to overrule an order made by a court in exercise of that power.
I am not sure in any case that it is wise to give the courts power to deprive a person of his right to a pension (see para. 5 of my letter to Mr. Strickland at (3)) but the U.K. Public Bodies Corrupt Practices Act, 1889, certainly does so.
In considering the effect of S.5 on
members of the Colonial Service it should be borne in mind that offences against both S.3 and S.4 can be tried summarily i.e. by a magistrate who would probably not be a person of such experience as a judge of the High Court.
Finally I must point out that the powers given to a court or magistrate by S.5 relate only to two categories of offences of a special kind, both involving the abuse by an officer of his position as a public servant. It may, therefore, be considered that the tentative objections which I have raised above are largely academic on the ground that it is both unlikely that an officer of the
Colonial Service would be convicted of such an office
and also certain that if he were so convicted it
would in every case be desirable to dismiss him and deprive him of pension,
3. G & Strickland
Th. Fairclough
J.C. McPetne
28/9/48.
28-9-48.
:
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