Security of tenure
Encyclopedia
Security of tenure is a term used in political science
to describe a constitutional or legal guarantee that an office-holder cannot be removed from office except in exceptional and specified circumstances.
Without security of tenure, an office-holder may find his or her ability to carry out their powers, functions and duties restricted by the fear that whoever disapproves of any of their decisions may be able to easily remove them from office in revenge. Security of tenure offers protection, by ensuring that an office-holder cannot be victimised for exercising their powers, functions and duties. It enables the democratic or constitutional methodology through which an office-holder comes to office not to be overturned except in the strictest and most extreme cases.
Most president
s of states worldwide and most monarchs have security of tenure. Governors-General
do not and can be dismissed by their head of state when formally advised to do so either by the prime minister
or by the cabinet.
In the United States
, while two presidents were impeached in the over two centuries existence of the presidency, (Andrew Johnson
and Bill Clinton
), no president has been removed from office to date.
n governor-general Sir John Kerr to dismiss the prime minister, Gough Whitlam
, in 1975. In the immediate aftermath of the dismissal critics, the Labor Party and much of the media criticised Kerr for not giving any advance indication that he intended to dismiss the prime minister. In systems where a head of state or representative of the head of state has security of tenure, both are in a position to exercise the third of Walter Bagehot
's three maxims governing the rights of a head of state: the 'right to warn' that prime minister or government's actions or inactions are inadvisable and in breach either of constitutional law or constitutional conventions.
The problem for Kerr was that if he had made any threat to dismiss Whitlam, if the latter did not manage to solve the crisis facing Australia over the stalemate in parliament and the loss of supply
could have been followed by a request by Whitlam to the Queen of Australia to dismiss Kerr and so pre-empt his own dismissal.
In a press conference after the withdrawal of his commission, Whitlam inadvertently highlighted this option when he told reporters:
"The Governor-General prevented me from getting in touch with the Queen by just withdrawing the Commission immediately. I was unable to communicate with the Queen, as I would have been entitled to do, if I'd had any warning of the course that he, the Governor-General, was to take."
As constitutionally, the Queen of Australia has no role in commissioning someone to form a government, or indeed in withdrawing someone's commission, her only active role would be with regard to who was governor-general. Other than that, her only possible role could have been to advise informally the Governor-General that it would be a mistake to dismiss Whitlam. (A then-advisor to Queen Elizabeth II
indicated later that the advisor believed that she would have advised Kerr not to dismiss Whitlam had Kerr consulted her.)
Whatever about the wisdom of Kerr's decision to withdraw the commission of Whitlam, the lack of security of tenure meant that he had little room for prior consultation with Whitlam without raising the danger that he himself would be dismissed to halt any planned intervention. That fundamental design flaw forced an extreme solution of sorts on the crisis, whereas, protected by security of tenure, other heads of state would have had the option of informal consultation, even to the extent of warning the head of government that if the head of government persisted with a particular course of action, the head of state would have to intervene using the constitutional powers.
In contrasts, presidents of France
, Italy
, Ireland
and elsewhere have been able in effect to warn prime ministers that they would have to intervene unless a solution to the crisis was found, with the prime ministers then being able to seek a compromise solution to the crisis to head off a head of state intervention.
in 1993 on the lessons to be learnt in moving from a constitutional monarchy to a republic. However, later that decade, Australia's constitutional convention produced a proposed model of Australian president that continued to lack security of tenure. During the 1999 referendum on becoming a republic, some critics asserted that the failure to provide security of tenure meant that the proposed presidency was fatally flawed from conception, with the officeholder unable to intervene except through a sudden, unannounced action such as that performed by Kerr in November 1975.
For that reason, support of the monarchy and other reasons, Australia voted to retain its constitutional monarchy in the referendum.
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
to describe a constitutional or legal guarantee that an office-holder cannot be removed from office except in exceptional and specified circumstances.
Without security of tenure, an office-holder may find his or her ability to carry out their powers, functions and duties restricted by the fear that whoever disapproves of any of their decisions may be able to easily remove them from office in revenge. Security of tenure offers protection, by ensuring that an office-holder cannot be victimised for exercising their powers, functions and duties. It enables the democratic or constitutional methodology through which an office-holder comes to office not to be overturned except in the strictest and most extreme cases.
Method of removal
The standard form of security of tenure offered to officeholders is usually that they can only be removed from office by either of two methods:- removal from office following impeachmentImpeachmentImpeachment is a formal process in which an official is accused of unlawful activity, the outcome of which, depending on the country, may include the removal of that official from office as well as other punishment....
(a formal charge equivalent to a criminal law indictment) by parliament, using weighted majorities (usually a two-thirds majority); - removal by courts for incapacity (mental, physical or psychological problems make them no longer for the forseeable future be able to function in office).
Most president
President
A president is a leader of an organization, company, trade union, university, or country.Etymologically, a president is one who presides, who sits in leadership...
s of states worldwide and most monarchs have security of tenure. Governors-General
Governor-General
A Governor-General, is a vice-regal person of a monarch in an independent realm or a major colonial circonscription. Depending on the political arrangement of the territory, a Governor General can be a governor of high rank, or a principal governor ranking above "ordinary" governors.- Current uses...
do not and can be dismissed by their head of state when formally advised to do so either by the prime minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...
or by the cabinet.
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, while two presidents were impeached in the over two centuries existence of the presidency, (Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
and Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
), no president has been removed from office to date.
The Australian Dismissal Crisis in 1975
Lack of security of tenure is regarded by some commentators as having contributed to the controversial decision of AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n governor-general Sir John Kerr to dismiss the prime minister, Gough Whitlam
Gough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
, in 1975. In the immediate aftermath of the dismissal critics, the Labor Party and much of the media criticised Kerr for not giving any advance indication that he intended to dismiss the prime minister. In systems where a head of state or representative of the head of state has security of tenure, both are in a position to exercise the third of Walter Bagehot
Walter Bagehot
Walter Bagehot was an English businessman, essayist, and journalist who wrote extensively about literature, government, and economic affairs.-Early years:...
's three maxims governing the rights of a head of state: the 'right to warn' that prime minister or government's actions or inactions are inadvisable and in breach either of constitutional law or constitutional conventions.
The problem for Kerr was that if he had made any threat to dismiss Whitlam, if the latter did not manage to solve the crisis facing Australia over the stalemate in parliament and the loss of supply
Loss of Supply
Loss of supply occurs where a government in a parliamentary democracy using the Westminster System or a system derived from it is denied a supply of treasury or exchequer funds, by whichever house or houses of parliament or head of state is constitutionally entitled to grant and deny supply. A...
could have been followed by a request by Whitlam to the Queen of Australia to dismiss Kerr and so pre-empt his own dismissal.
In a press conference after the withdrawal of his commission, Whitlam inadvertently highlighted this option when he told reporters:
"The Governor-General prevented me from getting in touch with the Queen by just withdrawing the Commission immediately. I was unable to communicate with the Queen, as I would have been entitled to do, if I'd had any warning of the course that he, the Governor-General, was to take."
As constitutionally, the Queen of Australia has no role in commissioning someone to form a government, or indeed in withdrawing someone's commission, her only active role would be with regard to who was governor-general. Other than that, her only possible role could have been to advise informally the Governor-General that it would be a mistake to dismiss Whitlam. (A then-advisor to Queen Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...
indicated later that the advisor believed that she would have advised Kerr not to dismiss Whitlam had Kerr consulted her.)
Whatever about the wisdom of Kerr's decision to withdraw the commission of Whitlam, the lack of security of tenure meant that he had little room for prior consultation with Whitlam without raising the danger that he himself would be dismissed to halt any planned intervention. That fundamental design flaw forced an extreme solution of sorts on the crisis, whereas, protected by security of tenure, other heads of state would have had the option of informal consultation, even to the extent of warning the head of government that if the head of government persisted with a particular course of action, the head of state would have to intervene using the constitutional powers.
In contrasts, presidents of France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
and elsewhere have been able in effect to warn prime ministers that they would have to intervene unless a solution to the crisis was found, with the prime ministers then being able to seek a compromise solution to the crisis to head off a head of state intervention.
The proposed Australian presidency
This design flaw in the Australian system was highlighted by international experts who briefed the Republic Advisory CommitteeRepublic Advisory Committee
The Republic Advisory Committee was a committee established by the then Australian Prime Minister Paul Keating in May 1993 to examine the constitutional and legal issues that would arise were Australia to become a republic...
in 1993 on the lessons to be learnt in moving from a constitutional monarchy to a republic. However, later that decade, Australia's constitutional convention produced a proposed model of Australian president that continued to lack security of tenure. During the 1999 referendum on becoming a republic, some critics asserted that the failure to provide security of tenure meant that the proposed presidency was fatally flawed from conception, with the officeholder unable to intervene except through a sudden, unannounced action such as that performed by Kerr in November 1975.
For that reason, support of the monarchy and other reasons, Australia voted to retain its constitutional monarchy in the referendum.
Additional information
- Charles Lund Black, Jr. Impeachment: A Handbook (Yale University Press, 1998) ISBN 0-300-07950-8
- Bunreacht na hÉireann (the Constitution of IrelandConstitution of IrelandThe Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
See link below) - Constitution of the United States of America (see link below)
- Jim Duffy, "Overseas studies: Ireland" in An Australian Republic: The Options - The Appendices (Republic Advisory Committee, Vol II, Commonwealth of Australia, 1993) ISBN 0-644-32589-5
- John M Kelly, The Constitution of Ireland (3rd edition, 1994)
- David Gwynn Morgan, Constitutional Law of Ireland ( Roundhall, 1990)
- Micheál Ó Cearúil, Bunreacht na hÉireann: A Study of the Irish Text (published by the All Party Oireachtas Committee on the Constitution, The Stationery Office, 1999).
- Hans Louis Trefousse, Impeachment of a President: Andrew Johnson, the Blacks and Reconstruction (Fordham University Press, 1999) ISBN 0-8232-1923-2
External links
- The Irish Constitution - Article 12 deals with impeachment and removal from office
- Constitution of the United States of America (original version as drafted)
- Draft articles of impeachment against US President Richard Nixon
- Impeachment of the President of South Korea in 2004
- Aftermath of the failure of the Russian Duma to impeach President Yeltsin
- Text of a press conference by Gough Whitlam in Parliament House in Canberra following his dismissal as prime minister by the Governor-General of Australia