Doctrine of Pleasure in Other Constitutions

* THE DOCTRINE OF PLEASURE IN OTHER CONSTITUTIONS: The Doctrine of Pleasure exists in some form or the other in most States of the world. In this section, we examine a few Constitutions and see how they have applied the Doctrine to their existing political systems. United States of America- In the USA, the State Governor may be removed by the process of impeachment by State Legislature. Some State Constitutions also provide for recall of a Governor by popular vote.

In the Senate, while debating whether to give the President the power to remove officers appointed by him, Ellsworth was of the opinion that, there is an explicit grant of power to the President, which contains the power of removal. The President, not the Senate, appoints. Thus, the grant of power for removal should also be made express, not implicit. To this Butler replied saying, the power of removal would be unhinging the equilibrium of power in the Constitution. Grayson reiterated this view, for according to him, the removal of officers was not palatable.

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According to him, the Constitution was a three-legged stool. If one of the legs is longer than the others, the stool will not stand. Congressional assertion of the power to power to limit Presidential removal of executive officers dates back to The Tenure of Office Act, 1867, which forbade presidential removal of designated Cabinet members without the consent of the Senate. The Tenure of Office Act was repealed in 1887, and a similar law restricting the president’s power to remove postmasters was declared unconstitutional in 1926.

Chief Justice Taft’s majority opinion in Myers is the primary source of the modern theory of removal. He concluded that “the power of removal is incident to the power of appointment”. Myers could be understood to mean that Congress may not place any limits on President’s power to remove executive officers; or it could be read as embodying the proposition that, whatever the limits of presidential removal power, Congress could not cede to itself any role in removing government officials.

The former reading was repudiated in Humphrey’s Executor v. United States. Specifically the court ruled that the president could not, at his pleasure, remove from office, before the expiration of his statutory term, a Federal Trade Commissioner, where the Congress sought to deny such discretion to the President. The Court embraced the second possible interpretation of Myers in Bowsher v Synar.

The President shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not in the Constitution otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment the appointment of such inferior officers in the President alone, in the courts of law, or in the heads of departments.

The power to appoint includes the power to remove; but this equally requires the advice and consent of the senate or may by law be made to do so. The Constitution nowhere explicitly indicates whether the President possesses the power to remove appointed officers, other than federal judges and subordinate employees. However, the Supreme Court has attempted to fill this gap by linking the power of removal to the power of appointment explicitly defined in Article II, S. 2.

The prerogative of erecting and disposing of offices arises from the principle that honours and offices are in their nature convertible and synonymous. All offices under the crown carry in the eye of the law an honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled by those that are most able to execute them. If there is a total silence in the Constitution, it is natural to conclude that an officer holding during pleasure is removable by the same power which appointed him, whether vested in a single person or a joint number.

If this power lodged in the discretion of a single person will afford greater security against corruption because of his amenability, why should not the power of appointing as well as removing officers be given to him? In the removal of officers, the President is not a Constitutional Council. He must therefore be solely accountable. The appointment to offices is an important part of the executive authority. Much of the ease, much of the reputation, much of the energy, and much of the safety of the nation depends on judicious and impartial appointments.

It is in the power of the president to continue any person in office, whom he shall once have appointed in the recess of the senate, as long as he may think proper. The President has qualified power of appointing the executive and judicial officers. The former of these are held during his pleasure. The appointment power resides with the President with the consent of the Senate. It would have been more beneficial to have left this power in the President without restraint, and the more so, as the consent of the Senate is not required for the dismissal of the officer. Pakistan-

According to the 1962 Constitution of Pakistan, the President had the power to make all key appointments. He appointed the Governors, central ministers, Auditor General, judges of the Supreme Court and the High Courts, the Attorney General among others. It was provided in the constitution that the Governor of a province should, in the performance of his functions, be subject to the directions of the President. The office of Civil Servants is controlled by the Pakistan Civil Servants Act, 1973, which also provides for the Doctrine of Pleasure of the President. Vietnam-

According to the 1959 Constitution, the President was given a similar range of duties as he had been given in 1946, including ‘appointing and removing the Prime Minister and other senior officials. ’ In the 1992 Constitution, the collective presidency and the Council of States, was split. The President had more or less the same role as in the 1959 Constitution with respect to the appointment and removal of Ministers and other officials. Thus, the Doctrine of Pleasure exists in Vietnam even though the Constitution has gone through some major upheavals in its time. Australia-

A formal reading of the Australian Constitution would have the reader believe all Executive Authority is contained in the Governor-General as the Queen’s representative. There is no mention of the position of Prime Minister. Section 62 however, does contain the mention of the Executive Council which acts much like the Council of Ministers does in India. The Governor-General is largely a ceremonial position whose Executive powers don’t extend far beyond commissioning governments, dissolving parliament and writs for elections. The implied power of the Governor-General is to dissolve an elected government.

An example of when this occurred was when John Kerr removed the Gough Whitlam Government in 1975, and when Phillip Game removed the government of Jack Lang during 1932. Like the Governor- General himself, the Governor of a state holds office during the pleasure of the crown. The Governor cannot be removed by the Governor-General and has no responsibility to the latter. ——————————————– [ 1 ]. Arch Dotson, The Emerging Doctrine of Privilege in Public Employment, Public Administration Review, Vol. 15, No. 2 (1955), pp. 77-88. 2 ]. John Adams, Notes of a Debate in the Senate, (1789). [ 3 ]. William H. Rehnquist, Grand Inquests 271(1992). (This statute was the proximate cause of President Johnson’s impeachment and near conviction). [ 4 ]. Myers v. United States, 272 U. S. 52 (1926). [ 5 ]. Id. at 119. Edward S. Corwin, Tenure of Office and Removal of Power Under the Constitution, 27 Colum L. Rev. 353, 360-69 (1927) (Taft’s conclusion that the removal of power reposed exclusively in the Executive was premised largely on the debates of the First Congress on the issue of removal.

His construction of these debates however, has been criticized); Charles A. Miller, The Supreme Court and the Uses of History, 64-68 (1969); Raoul Berger, Impeachment 139-40 (1973) (Also if the debates suggested a broad presidential power of removal, such power would be of less than constitutional dimension). [ 6 ]. 1, Laurence H. Tribe, American Constitutional Law, (3d ed. 2000). [ 7 ]. 295 U. S. 602 (1935). [ 8 ]. 478 U. S. 714 (1986). [ 9 ]. U. S. Const. Art. II. , § 2, Cl. 3. (As to who are inferior officers, see United States v Hartwell, 6 Wall. 85; United States v. Moore, 95 U. S. 760. ) [ 10 ]. Ex parte Hennen, 13 Pet. 230. See Keyes v. United States, 109 U. S. 336. (The Judges of courts of the United States hold during good behaviour). U. S. Const. Art. III. , § I. McAllister v. United States, 141 U. S. 174. (But judges of territorial courts do not come within this clause). [ 11 ]. Act of March 2, 1867, Rev. Stat. of U. S. S. 1767 et seq. This act was repealed March 3, 1887. United States v. Avery, Deady, 204. (The office of Attorney General is not a Constitutional office.

It follows that he must be appointed by the President, by and with the consent of the Senate. It appears, however, that he can be removed by the President alone and without that consent). Parsons v. United States, 167 U. S. 332; 4 Elliot’s Debates, 350, 404. (Substantially the same power has been conferred upon the President in cases of United States District Attorneys). [ 12 ]. U. S. Const. Art. III, § 1. [ 13 ]. In re Hennen, 38 U. S. (13 Pet. ) at 259. [ 14 ]. Richard A. Posner, Utilitarianism, Economics, and Legal Theory, The Journal of Legal Studies, Vol. , No. 1 (1979), pp. 103-140. [ 15 ]. William Blackstone, Commentaries, 1765. [ 16 ]. Gerald L. Neuman, Whose Constitution? , The Yale Law Journal, Vol. 100, No. 4 (1991), pp. 909-991. [ 17 ]. Samuel Adams to Richard Henry Lee (1789). [ 18 ]. James Wilson, Government, Lectures on Law (1791). [ 19 ]. St. George Tucker, Blackstone’s Commentaries 1: APP. 342-43 (1803). [ 20 ]. William Rawle, A View of the Constitution of the United States, 162-67 (2d. ed. 1829). [ 21 ]. Pak. Const. 1962, arts. 33, 36, 50, 66, 92, 201. [ 22 ]. Ibid. , Art. 66. [ 23 ].

The relevant provisions of the Pakistan Civil Servants Act, 1973 are: 4. Tenure of office of civil Servants. – Every civil servant shall hold office during the pleasure of the President. 5. Appointments. – Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf [ 24 ]. Mark Sidel, The Constitution of Vietnam- A Contextual Analysis (2009). 25 ]. Vietnam Const. 1992 Arts. 102-8. [ 26 ]. Australian Const. , § 62 reads: 62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. [ 27 ]. Tony Blackshield, George Williams, Australian Constitutional Law and Theory- Commentary and Materials, (4th ed. 2006). [ 28 ]. 5, D. D. Basu, Commentary on the Constitution of India (8th ed. 2009).

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